Hawkins #205069 v. Norwood et al

Filing 80

ORDER ADOPTING REPORT AND RECOMMENDATION over objections and dismissing remaining motions as moot 43 , 68 , 74 , 75 , 76 , 77 , 65 ; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, aeb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CECIL HAWKINS, #205069,
Plaintiff,

)
)
)
-v)
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JEFF FERGUSON, et al.,
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Defendants.
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____________________________________)

No. 1:10-cv-432
HONORABLE PAUL L. MALONEY

ORDER ADOPTING REPORT AND RECOMMENDATION OVER OBJECTIONS
AND DISMISSING REMAINING MOTIONS AS MOOT
In April 2010, state prisoner Cecil Hawkins filed a complaint in this court under 42 U.S.C.
§ 1983, alleging a number of violations of his civil rights by various defendants. In December 2010
and April 2011, Defendants filed motions for summary judgment. (ECF Nos. 43, 65.) On review
of the parties’ briefing, Magistrate Judge Scoville issued a Report and Recommendation that
summary judgment be granted and that Mr. Hawkins’s claims be dismissed. (ECF No. 68.) At Mr.
Hawkins’s request, Magistrate Judge Scoville granted an extension of time in which to file
objections. (ECF No. 71.) Before the court today is Mr. Hawkins’s timely objections to the Report
and Recommendation. (ECF No. 72.)
I.

STANDARD OF REVIEW
Parties have 14 days to file written objections to the proposed findings and recommendations

in a magistrate judge’s report and recommendation (“R&R”). 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b). A district court judge reviews de novo the portions of the R&R to which objections have
been filed, and may accept, reject, or modify, in whole or in part, the magistrate judge’s findings or
recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Only specific objections are
entitled to de novo review under the statute, see Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986)

(per curiam), and the statute does not “positively require[] some lesser review by the district court
when no objections are filed.” Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to object to an
issue waives that issue, along with the party’s right to appeal that issue. United States v. Sullivan,
431 F.3d 976, 984 (6th Cir. 2005); see Arn, 474 U.S. at 155 (upholding the Sixth Circuit’s practice).
II.

DISCUSSION
Objection No. 1
Mr. Hawkins first objects that Magistrate Judge Scoville lacked power to issue unspecified

orders in this matter, as he has not consented to a magistrate judge doing so under 28 U.S.C. §
636(c)(1). Because this objection does not relate to the R&R, it is not properly included in this set
of objections.

Regardless, this objection misunderstands the relation between section 636

subsections (b) and (c), however. Subsection (c)(1) allows a magistrate judge to “conduct any or
all proceedings in a jury or nonjury civil matter” with the consent of the parties. Subsection (b)(1),
which applies to this case, allows the district court to designate a magistrate judge to hear matters
regardless of the parties’ consent, with district-court review of the magistrate judge’s orders or
recommendations. Though Mr. Hawkins complains of unspecified “clearly erroneous decisions,”
does not specify which of Magistrate Judge Scoville’s orders were supposedly clearly erroneous;
nor does he give the court any reason to believe that any of these orders were made in error.
Because it has not “been shown that the magistrate judge’s order[s] [are] clearly erroneous or
contrary to law,” id. § 636(b)(1)(A), Mr. Hawkins’s objection is OVERRULED.
Objection No. 2
Next, Mr. Hawkins objects that the magistrate judge erred by relying on this court’s prior

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holding that the statute of limitations bars certain of Mr. Hawkins’s actual and potential1 claims.
Essentially, Mr. Hawkins argues that the statute of limitations should not apply because (1) his
claims are subject to equitable tolling, and (2) defendants’ actions constituted continuing violations.
Mr. Hawkins fails to support either claim, however. He argues that he was prevented from asserting
his claims earlier by “threats of retaliation” and by defendants’ alleged excessive use of force as
described in his complaint. But the mere threat of unspecified “retaliation” does not constitute
“compelling equitable considerations” justifying equitable tolling. Graham-Humphreys v. Memphis
Brooks Museum of Art, Inc., 209 F.3d 552, 561 (6th Cir. 2000). Nor can Mr. Hawkins credibly
claim that his delay in asserting his rights was caused by the same actions that allegedly violated
those rights. See id. Mr. Hawkins’s claim that defendants’ actions constitute continuing violations
is entirely unsupported, which is understandable, given that the time-barred claims related to his
preliminary examination (which is long past), discrete acts of “excessive use of force,” and the
conditions in a correctional facility in which he is no longer housed. Neither claim therefore
justifies Mr. Hawkins’s objection, which is furthermore improperly raised in response to Magistrate
Judge Scoville’s R&R. This objection is therefore OVERRULED.
Objection No. 3
Third, Mr. Hawkins objects to this court’s finding that his amended complaint did not relate
back to his original complaint, filed April 26, 2010. Again, this is not an objection to the R&R itself
and so is improperly raised here. This objection is OVERRULED.

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As Magistrate Judge Scoville noted, Mr. Hawkins has refused to state the specific
date of the alleged assault which forms the basis for one of his claims.
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Objection No. 4
Mr. Hawkins next objects that Magistrate Judge Scoville erred by finding that the amended
complaint is not “verified” such that it can be considered as an affidavit in opposition to defendants’
motions for summary judgment. He argues that under Local Rule 5.6(a), he was required to file his
complaint “in the form specified by the court” and that the magistrate judge provided him a form
lacking the necessary language for a verified complaint. Mr. Hawkins argues that the court may
choose to treat an unverified complaint as a verified one. But even if this were true, he does not
show that the magistrate judge erred by failing to do so. Mr. Hawkins admits that his complaint was
unverified, and he does not claim that he ever mistakenly thought otherwise. There was no barrier
to his filing an affidavit with any relevant factual allegations; indeed, Mr. Hawkins filed several
actual affidavits in this case, which the magistrate judge duly considered in deciding defendants’
motions. This objection is therefore OVERRULED.
Objection No. 5
Mr. Hawkins objects to the magistrate judge’s failure to provide him with copies of various
authorities cited in the R&D, including several unpublished opinions and other materials not
available in the MDOC law library. This is in fact an objection to a separate order, ECF No. 71, and
so is improperly included here. Further, Plaintiff cites no authority entitling him to copies of all
cited materials not available in the prison library. This objection is therefore OVERRULED.

Objection No. 6
Mr. Hawkins objects to the magistrate judge’s failure to mention, in his description of the
standard of review applicable to motions for summary judgment, that Mr. Hawkins’s pro se

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pleadings are to be treated more leniently. He argues that this failure deprived him of his due
process rights. A party does not have a life, liberty, or property right to a complete statement of the
standard of review, however, and the mere failure to cite all of the provisions that Mr. Hawkins
prefers was not error, let alone error of constitutional magnitude. Nor does Mr. Hawkins cite any
particular instance where the magistrate judge failed to actually apply the proper standard of review,
and without such a showing, his objection must be OVERRULED.
Objection No. 7
Next, Mr. Hawkins objects that the magistrate judge “failed to show in the [R&R] that he
assumed the truth of Plaintiff’s evidence and that he construed that evidence in a light most
favorable to the Plaintiff.” Mr. Hawkins fails to point to any specific instance where the magistrate
judge supposedly erred, however. This objection is therefore too vague to merit review. An
objection that fails to explain and cite the problematic portions of the R&R is not sufficiently
specific to merit consideration. See Neuman v. Rivers, 125 F.3d 315, 322–23 (6th Cir. 1997). In any
case, the potential error here would come from the magistrate judge failing to apply the correct
standard, not by failing to convince Mr. Hawkins that he did so. Because Mr. Hawkins points to no
error here, this objection is OVERRULED.
Objection No. 8
Mr. Hawkins next objects that Magistrate Judge Scoville erred by “engaged in several acts
of burden-shifting . . . where the Defendant[s] failed to carry their initial burden of proving the
absence of a disputed material fact . . . .” Again, however, Mr. Hawkins fails to identify these
“several” errors. Because this objection fails to explain and cite the problematic portions of the
R&R, it is too vague to merit consideration. See Neuman v. Rivers, 125 F.3d 315, 322–23 (6th Cir.

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1997). The objection is therefore OVERRULED.
Objection No. 9
Mr. Hawkins objects that the magistrate judge referred to the incorrect MDOC policy
directive—the version of directive 03-02-130 that became effective March 5, 2007, rather than the
version effective December 19, 2003—when deciding whether Mr. Hawkins had properly exhausted
his administrative remedies regarding his claim for excessive use of force during his transport to and
from his sentencing on April 30, 2007. Apparently, the basis for this claim is Mr. Hawkins’s
assertion that this claim “began October 7, 2006 and continued through October 17, 2007.” While
it is true that Mr. Hawkins’s Count II refers to acts that occurred at various points during this time
span, he does not show how the magistrate judge was wrong to look to the policy directive in effect
at the time each of the alleged bad acts occurred. Further, as the magistrate judge found, “Plaintiff
did not file any grievance against Defendant Norwood based on the restraints she authorized for use
during plaintiff’s April 30, 2007 transportation to and from his sentencing hearing.”2 R&R, ECF
No. 68, at 13. The magistrate judge’s exhaustion finding therefore stands regardless of the policy
directive in effect at the time. For these reasons, this objection is OVERRULED.
Objection No. 10
Similarly, Mr. Hawkins objects that the magistrate judge should have referred to the MDOC
policy directive 03-02-130 that became effective on December 19, 2003, rather than the version that
became effective on July 9, 2007, when deciding whether Mr. Hawkins’s remaining claims had been
exhausted. Again, Mr. Hawkins states only that his claims “began October 7, 2006 and continued

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The court had previously dismissed claims against Defendant Baker, the only
other party named in this Count.
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through October 17, 2007,” leaving the court to assume that his argument is based on a claim that
the policy directive in effect at the beginning of this period should apply. Again, however, Mr.
Hawkins does not provide any support for such an argument. In any case, the magistrate judge’s
statement here does not appear to affect the recommended result. The only relevant grievance that
Mr. Hawkins claims having filed was the “Step III” grievance filed February 1, 2007. That
grievance cannot be said to have exhausted any of Plaintiff’s claims that arose after that date, and
as the magistrate judge correctly noted, the claims that arose before that date have been deemed
barred by the statute of limitations. This grievance therefore could not have exhausted any of the
claims still at issue in this case. This objection is therefore OVERRULED.
Objection No. 11
Next, Mr. Hawkins objects that the magistrate judge erred by “recharacteriz[ing] the facts
to put a disparaging gloss on certain morally sensitive elements of Plaintiff’s prison escape attempt.”
Mr. Hawkins argues that his co-defendant alone attacked a female corrections officer during the
2006 escape attempt and that neither defendant “subdued” the driver of the garbage truck that Mr.
Hawkins then drove through the fence of the Muskegon Correctional Facility. This mischaracterizes
the R&R, however. The magistrate judge specifically noted that “Plaintiff blames his co-defendant
Jowske for spraying hot sauce in Officer Chambers’ face and shoving her to the ground.”
Regardless, Mr. Hawkins does not dispute that he was convicted of assault on a prison employee,
and these facts had no bearing on the ultimate recommended disposition of defendants’ motions for
summary judgment, in any case. This objection is OVERRULED.
Objection No. 12
Mr. Hawkins next objects that the magistrate judge “misstated the facts regarding Plaintiff’s

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criminal charges.” It is not clear from his objection, but he appears to dislike the magistrate judge’s
failure to note that his charges of “assault on a prison employee” and “prisoner in possession of a
weapon” were brought under an aiding-and-abetting theory. Because this fact is irrelevant to the
magistrate judge’s recommended disposition of this matter, this objection is OVERRULED.
Objection No. 13
Mr. Hawkins claims that “[i]t is a matter of factual record” that he filed a temporary
restraining order in his state-court prosecution “when he could not get any relief from the
defendant[s] through the grievance process.” He fails to support this claim with any citation to the
record, however, and in any case the magistrate judge expressly held that “[a]ssertions of futility do
not excuse plaintiff from the exhaustion requirement.” ECF No. 68, R&R, at 16. This objection is
OVERRULED.
Objection No. 14
Mr. Hawkins next complains that the magistrate judge erred by noting in two places that Mr.
Hawkins had complained about not being allowed to have a haircut and trim his beard before his
criminal trial. This objection provides no plausible ground for error. It is OVERRULED.
Objection No. 15
Next, Mr. Hawkins argues that the magistrate judge erred by “trivializ[ing] Plaintiff’s
excessive force claim” in his recitation of the facts. Mr. Hawkins states various allegations that are
“a matter of factual record,” though he not once cites to the record in support. Further, Mr. Hawkins
does not dispute the facts as stated by the magistrate judge—that Mr. Hawkins had expressed a
desire to be transported in more comfortable restraints and that Deputy Warden Norwood had
authorized that Mr. Hawkins be transported in behind-the-back, black-box handcuffs. Indeed, Mr.

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Hawkins’s own recitation of the facts confirms both points: “Plaintiff was transported [under] the
intense pain of being black box handcuffed BEHIND his back”; and “Defendant Norwood . . . added
handwritten instructions . . . specifically instructing the MDOC transportation officers to apply the
black box restraints BEHIND [Plaintiff’s] back.” ECF No. 72, Objections to R&R, at 20 (internal
quotation marks omitted). Instead, Mr. Hawkins appears to argue only that the magistrate judge’s
factual statement was incomplete. He fails to show how this supposed incompleteness rose to legal
error, however. Mr. Hawkins also claims that he has made allegations of an unlawful conspiracy
against him and that “these allegations are entitled to [be] accepted as true.” This is incorrect, and
Magistrate Judge Scoville’s R&R correctly rejected such claims. For these reasons, this objection
is OVERRULED.
Objection No. 16
Mr. Hawkins next objects to the magistrate judge’s statement that “Plaintiff was never
diagnosed or treated for any injury related to this use of restraints.” Mr. Hawkins claims, without
citation, that he was in fact diagnosed, that he submitted exhibits to his complaint showing as much,
and that any statement to the contrary “is an outright lie.” The record seems to disagree, however.
The affidavit that Mr. Hawkins submitted with his Amended Complaint (neither the original
complaint nor the amendment attach any exhibits) states, under the heading “Black-box Handcuffing
Behind Back”: “I have never received a medical diagnosis nor medical treatment for the physical
injury during the time it first began until now . . . .” ECF No. 9, Aff. in Support, ¶ 4. This objection
is OVERRULED.
Objection No. 17
Mr. Hawkins next objects that the magistrate judge erred by finding no dispute of fact

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regarding whether Mr. Hawkins ever filed grievances against defendants Ferguson, Gardner, Luther,
Rutgers, Shreve, Stine, Wolever, or Ingraham regarding his First and Eighth Amendment claims.
Mr. Hawkins argues that he did in fact try to send grievances, though “[t]he Defendants have
provided the Court only with a partial record of the grievances and grievance appeals that have been
filed by Plaintiff.” Mr. Hawkins fails to point to a single fact (as opposed to unsupported
allegations) supporting this claim, however. Further, Mr. Hawkins does not specifically claim that
he did file grievances against any of these defendants. For these reasons, this objection is
OVERRULED.
Objection No. 18
Mr. Hawkins objects to the magistrate judge’s statement that “Plaintiff has enjoyed a more
than adequate opportunity to conduct discovery in support of his claims.” He points to the request
for a nine-month continuance to allow for discovery, which had been placed in the middle of his
response to defendants’ summary-judgment briefs, see ECF No. 58, at 18, and he appears to argue
that the court’s failure to act on that request denied him an opportunity to conduct discovery. This
is incorrect. As the magistrate judge correctly noted, “Discovery has never been stayed in this case.”
Plaintiff filed his amended complaint in July 2010, and it was served shortly thereafter. Defendants’
main summary-judgment brief had been filed on December 10, 2010. The magistrate judge granted
Plaintiff an extension of time to file his response and waited almost a year after that response to rule
on defendants’ motions. The magistrate judge’s statement is unequivocally correct: Mr. Hawkins
has had more than enough time to conduct discovery here. It appears only that he has not taken
advantage of it. This objection is OVERRULED.
Objection No. 19

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Mr. Hawkins’s next objection involves the magistrate judge’s sovereign-immunity ruling.
He claims that the magistrate judge erred by barring damages claims against all defendants in their
official capacities. Instead, Mr. Hawkins claims, “[t]he Eleventh Amendment does not forbid suing
state officials for damages in their individual capacities, and for declaratory or injunctive relief.”
This statement is entirely consistent with the magistrate judge’s ruling, however. Mr. Hawkins also
argues that the Michigan Attorney General’s appearance on behalf of defendants waived the state’s
sovereign immunity “because the intentional scope of representation was not limited to official
capacity only.” Defendants have raised sovereign immunity as grounds for dismissal from their first
filing in this case, however. They will therefore not be deemed to have waived this defense. The
objection is OVERRULED.
Objection No. 20
Mr. Hawkins objects to the magistrate judge’s sua sponte finding that “Plaintiff’s claims for
injunctive and declaratory relief against the defendants are moot.” Though Mr. Hawkins admits that
he is no longer an inmate at the Ionia Maximum Correctional Facility (“ICF”), he argues that he
could be transferred back at any time and that his claims are “capable of repetition yet evading
review,” thus falling under an exception to the mootness doctrine. The mere possibility that he
could be transferred will not provide an exception to mootness, however, and Mr. Hawkins does not
show anything more. Nor can he establish an exception by claiming that prisoners have filed similar
complaints in the past and not gotten relief. Even if the court assumed this fact, it would not
establish that these claims were in fact meritorious and that the defendants were therefore evading
review of their actions. Mr. Hawkins further argues that his claims should go forward because the
allegedly illegal acts are not restricted to ICF employees and that Defendants have a “custom” of

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transferring prisoners who bring civil claims in order to evade review. Neither Mr. Hawkins’s
claims nor the evidence on record supports these bare allegations, however. This objection is
therefore OVERRULED.
Objection No. 21
Mr. Hawkins next objects to the magistrate judge’s finding that he never filed grievances
against defendants Ferguson, Gardner, Luther, Rutgers, Shreve, Stine, Wolever, or Ingraham.
Though this is similar to Objection No. 17, Mr. Hawkins makes somewhat different claims in its
support. Here, he argues (1) that Defendants have waived their failure-to-exhaust affirmative
defense because ICF “did not have a tamper-proof grievance system,” and (2) that Defendants failed
to adequately support their defense because they only provided a record of Step-III grievances, not
Step-I and Step-II as well. These objections fail. First, Mr. Hawkins fails to show that a “tamperproof” grievance system is in fact necessary to preserve a defendant’s exhaustion defense—a claim
that seems unlikely at best. Further, the magistrate judge specifically held that despite any problems
he had faced at ICF, “it was incumbent upon [Mr. Hawkins] after his . . . transfer . . . to file
grievances corresponding to all the claims he is now asserting.” Mr. Hawkins’s first objection fails
to address this ground and therefore fails. Second, because any grievances must be taken through
the Step-III procedure before they are properly exhausted, the court finds that evidence regarding
Step-III grievances is sufficient to support the magistrate judge’s ruling, at least under the facts here.
This objection is therefore OVERRULED.
Objection No. 22
Mr. Hawkins next objects that the magistrate judge failed to address his evidence showing
that Defendants submitted an “altered and fraudulent document”—that is, a Step-I grievance

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allegedly filed by Mr. Hawkins. The evidence here appears to show two separate Step-I grievances,
filed days apart. This evidence is irrelevant, however. As the magistrate judge found, claims must
be pursued through Step III to be fully exhausted. Mr. Hawkins’s claimed error here has no effect
on the magistrate judge’s ruling, and so this objection is OVERRULED.
Objection No. 23
Here, Mr. Hawkins objects that the applicable grievance policy did not require him to file
grievances corresponding to all his prior claims after he was transferred. The magistrate judge did
not find otherwise, however. Instead, his ruling was based on the fact that Mr. Hawkins had not
filed grievances regarding these claims and the legal principle that “[a]ssertions of futility do not
excuse plaintiff from the exhaustion requirement.” ECF No. 68, at 16 (citing Napier v. Laurel Cnty.,
636 F.3d 218, 224 (6th Cir. 2011)). Even assuming the truth of Mr. Hawkins’s claim, both bases
for the ruling still stand. This objection is OVERRULED.
Objection No. 24
Mr. Hawkins next objects to the magistrate judge’s alternative grounds for summary
judgment. Specifically, he claims that the magistrate judge erred by recommending summary
judgment “without any evaluation of Plaintiff’s alleged facts construed in his favor and without any
discussion of the complete lack of opposing argument from the Defendants.” This is incorrect. The
magistrate judge considered both Defendants’ arguments and the evidence presented by Plaintiff.
As discussed above, however, Mr. Hawkins is not entitled to have his unverified complaint taken
as an affidavit of fact; therefore, the magistrate judge properly looked to Mr. Hawkins’s affidavits
and not his bare pleadings as potential support. This objection is therefore OVERRULED.
Objection Nos. 25–28

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In these objections, Mr. Hawkins argues against the magistrate judge’s recommended
disposition of Defendants’ Motions for Summary Judgment. Because the legal and factual bases for
these recommendations are sound, however, these objections are OVERRULED.
Objection No. 29
Finally, Mr. Hawkins objects that the magistrate judge erred by failing to adjudicate the
issues of “personal involvement” and “physical injury” raised by Defendants in their summaryjudgment motions.

This was not error, however.

Because the magistrate judge properly

recommended granting Defendants’ motions on other grounds, he had no need to reach these issues.
This objection is OVERRULED.
III.

PLAINTIFF’S REMAINING MOTIONS
Along with his objections to the R&R, Mr. Hawkins filed a Motion for Appointment of

Counsel (ECF No. 74), a Motion for Extension of Time to File Response3 (ECF No. 75), a “Motion
for a Less Obfuscated Report and Recommendation” (ECF No. 76), and a Motion asking for recusal
of Magistrate Judge Scoville (ECF No. 77). Because the court’s disposition of the R&R moots these
motions, they will be DENIED.

For the reasons discussed above, IT IS HEREBY ORDERED that:
1.

The report and recommendation (ECF No. 68) is ADOPTED, over objections, as the opinion
of this court;

2.

Defendants’ Motions for Summary Judgment (ECF Nos. 43, 65) are GRANTED;

3

The court notes that Mr. Hawkins had filed a response to Defendants’ Motion for
Summary Judgment over a year before he filed this motion.
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3.

Plaintiff Hawkins’s claims are DISMISSED WITH PREJUDICE; and

4.

Plaintiff Hawkins’s Motion for Appointment of Counsel (ECF No. 74), Motion for Extension
of Time to File Response (ECF No. 75), “Motion for a Less Obfuscated Report and
Recommendation” (ECF No. 76), and Motion asking for recusal of Magistrate Judge
Scoville (ECF No. 77) are DENIED as moot.

IT IS SO ORDERED.

Date:

May 22, 2012

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge

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