Treadwell #124392 v. Almy et al

Filing 75

ORDER ADOPTING REPORT AND RECOMMENDATION 72 ; dismissing as moot claims for injunctive relief; granting 62 motion for summary judgment; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, kw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT TREADWELL #124392,
Plaintiff,

)
)
)
-v)
)
RON ALMY,
)
MICHAEL SINGLETON,
)
CHAD HARDY, and
)
TONY HENRY,
)
Defendants.
)
____________________________________)

No. 1:10-cv-560
HONORABLE PAUL L. MALONEY

ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff Robert Treadwell, a prisoner under the control of the Michigan Department of
Corrections (“MDOC”), filed a civil rights action against multiple defendants. The complaint alleges
that he was removed from his work assignment as an “OD cook” in retaliation after voicing his
concerns about the quality of chicken patties being served to prisoners. The magistrate judge has
issued a report recommending the claims for injunctive relief be dismissed as moot and Defendants’
second motion for summary judgment be granted. (ECF No. 72.) Mr. Treadwell filed objections.
(ECF No. 73.)
After being served with a report and recommendation (R&R) issued by a magistrate judge,
a party has fourteen days to file written objections to the proposed findings and recommendations.
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. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Only
those objections that are specific are entitled to a de novo review under the statute. Mira v. Marshall,
806 F.2d 636, 637 (6th Cir. 1986) (per curiam) (holding the district court need not provide de novo
review where the objections are frivolous, conclusive or too general because the burden is on the
parties to “pinpoint those portions of the magistrate’s report that the district court must specifically

consider”). Failure to file an objection results in a waiver of the issue and the issue cannot be
appealed. United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); see also Arn, 474 U.S. at 155
(upholding the Sixth Circuit’s practice). The district court judge may accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge. 28 U.S.C. §
636(b)(1); Fed. R. Civ. P. 72(b). Here, having reviewed the objections de novo, the Court finds the
report and recommendation accurately states the applicable facts and correctly applies the relevant
law.
Mr. Treadwell raised five objections in the petition. First, he claims that he is entitled to
injunctive relief even though he was transferred to another facility. Pursuant to the case law cited
in the report and recommendation, this objection is meritless. Next, Mr. Treadwell claims the record
does not establish that other prisoners rejected the chicken at issue after his complaints were
disseminated because there are no prisoner affidavits supporting that fact. Yet, the record contains
two affidavits from prisoners who rejected the chicken option because they feared the food was
moldy. (See ECF No. 25-1 at 3, ¶ 4 and 4, ¶ 3.) Mr. Treadwell’s remaining arguments disagree with
the magistrate judge’s interpretation and application of case law, specifically Siggers-El v. Barlow,
412 F.3d 693 (6th Cir. 2005). After conducting a de novo review, this Court agrees with the
magistrate judge’s interpretations. The report and recommendation found that no clearly established
right was violated in this case; the authority cited by Mr. Treadwell does not establish otherwise and
involved a situation with material factual differences. Finally, Mr. Treadwell cannot raise a new
claim based on his right to access the courts into his suit at this point when it has not been raised
previously.

2

Accordingly, the report and recommendation (ECF No. 72) is ADOPTED, over objections,
as the opinion of this Court. The claims for injunctive relief are DISMISSED AS MOOT and the
motion for summary judgment (ECF No. 62) is GRANTED.
IT IS SO ORDERED.

Date:

December 18, 2013

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

3