Padgett #510495 v. Caruso et al

Filing 33

ORDER ADOPTING REPORT AND RECOMMENDATION 23 , defendant's Motion for Summary Judgment 18 is granted as to Defendant Groom and denied as to Defendant Wilson; claims against Defendant Groom are dismissed with prejudice; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, aeb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KODY PADGETT, #501495,
Plaintiff,

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-v)
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UNKNOWN WILSON,
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Correctional Officer, and
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UNKNOWN GROOM,
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Correctional Officer,
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in their personal and official capacities,
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Defendant.
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____________________________________)

No. 1:10-cv-00950
HONORABLE PAUL L. MALONEY

ORDER ADOPTING REPORT AND RECOMMENDATION OVER OBJECTIONS
Before this court is a Report and Recommendation issued by Magistrate Judge Scoville.
(ECF No. 23.)
I.

BACKGROUND
Kody Padgett, a state prisoner in the Oaks Correctional Facility, filed the present suit under

42 U.S.C. § 1983, naming as defendants four employees of the Ionia Bellamy Creek Correctional
Facility. Mr. Padgett’s claims against two of the employees have since been dismissed; only his
claims against Residence Unit Officer Ronny Wilson and Residence Unit Officer Nicholas Groom
remain. Defendants Wilson and Groom moved for summary judgment on February 11, 2011. (ECF
No. 18.) The magistrate judge issued a report recommending that the motion be granted in part and
denied in part. The report further recommended that certain of Mr. Padgett’s claims be dismissed.
(ECF No. 23.)
Plaintiff and Defendant Wilson timely filed objections. (ECF Nos. 24, 26.) Plaintiff also
filed a document purporting to be his response to Defendant Wilson’s objections. (ECF No. 29.)
Pursuant to this court’s order, Defendants filed a response to Plaintiff’s objections. (ECF No. 31.)

II.

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).
III.

DISCUSSION

A.

Defendant Groom’s Motion for Summary Judgment
Plaintiff objects to the magistrate’s recommendation that Defendant Groom’s Motion for

Summary Judgment should be granted. In particular, Plaintiff argues that he did in fact submit
evidence sufficient to support his claim against Defendant Groom.
Plaintiff’s objection is OVERRULED.

Plaintiff’s objection fails to point to any

unconsidered, admissible evidence regarding this claim. It instead merely repeats his complaint’s
conclusory allegation that Groom had a “reasonable opportunity” to intervene in the alleged attack
on Plaintiff, but failed to do so. The magistrate judge adequately surveyed the evidence, including
Plaintiff’s verified complaint, and correctly determined that Plaintiff had not presented sufficient
evidence to support his claim against Defendant Groom. (R&R 12–14.) Plaintiff’s arguments

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regarding whether Defendant Groom observed any physical contact between Plaintiff and Defendant
Wilson are irrelevant to the issue of deliberate indifference on which the magistrate judge based his
recommendation.
B.

Defendant Wilson’s Motion for Summary Judgment
Defendant Wilson objects to the magistrate’s recommendation that his Motion for Summary

Judgment be denied. Specifically, Defendant Wilson argues that the magistrate, in making his
recommendation, improperly weighed the effect of Plaintiff’s failure to respond to Defendants’
Motion for Summary Judgment and failed to give sufficient weight to evidence presented by
Defendant Wilson.
Defendant Wilson’s objection is OVERRULED. The magistrate judge’s analysis here
adequately considered the fact that Plaintiff failed to respond to the Motion for Summary Judgment
in light of the fact that Plaintiff’s “verified complaint . . . satisfies the burden of the nonmovant to
respond,” Smith v. Campbell, 250 F.3d 1032, 1036 (6th Cir. 2001), and that it is considered as his
affidavit in opposition to the motion. El Bey v. Roop, 530 F.3d 407, 414 (6th Cir. 2008). (R&R
10–11.) The magistrate also properly considered the evidence submitted by Defendant Wilson,
including the Defendants’ affidavits, the video showing the “last seven seconds of his escort,” and
the critical incident report. (R&R 11–12.)
Further, to the extent that Defendant Wilson objects on the basis that the magistrate
improperly failed to consider evidence in support of Defendant Wilson’s Motion because that
evidence was not in a form that would be admissible at trial (Wilson Obj. 4 (“Furthermore, evidence
is not required to be in a form that would be admissible at trial.”)), that objection is also
OVERRULED. Defendant Wilson does not specifically object on this ground; nor does he pinpoint

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the portion of the magistrate’s R&R to which he may be objecting. He has thus waived this
objection. In any case, Wilson makes no argument that this evidence, even if considered, should
have changed the magistrate judge’s recommendation, and indeed it has little bearing on the issue
of whether Plaintiff has put forth sufficient evidence to create a triable issue of fact.
C.

Defendant Wilson’s Claim of Qualified Immunity
Defendant Wilson objects to the magistrate’s recommendation that his Motion for Summary

Judgment on the issue of whether he was entitled to qualified immunity be denied. Specifically,
Defendant Wilson argues that the magistrate gave improper weight to Plaintiff’s verified complaint
and that the magistrate failed to place the ultimate burden on Plaintiff to demonstrate that Defendant
Wilson is not entitled to qualified immunity.
Defendant Wilson’s objection is OVERRULED. As Defendant Wilson notes, “When
qualified immunity is analyzed in the context of a summary judgment motion, a court must
“determine whether the plaintiff has alleged sufficient facts, and supported the allegations by
sufficient evidence . . . .” (Wilson Obj. 6.) But rather than the magistrate judge, it is Defendant
Wilson, in arguing that Plaintiff “produced no evidence,” who fails to give proper weight to the
submitted evidence. As discussed above, a verified complaint is to be treated as an affidavit for
purposes of summary judgment, and as such it satisfies Plaintiff’s burden to respond. The magistrate
judge properly considered the contents of Plaintiff’s verified complaint, and properly placed the
parties’ respective burdens, in recommending that Defendant Wilson’s motion for summary
judgment on this issue should be denied. (R&R 14.)

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

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1.

The report and recommendation (ECF No. 23) is ADOPTED, over objections, as the opinion
of this court;

2.

Plaintiff’s claims for declaratory and injunctive relief are DISMISSED as moot;

3.

Plaintiff’s claims for damages against Defendants in their official capacity are DISMISSED
WITH PREJUDICE as barred by state sovereign immunity; and

4.

Defendants’ Motion for Summary Judgment (ECF No. 18) be GRANTED as to Defendant
Groom and DENIED as to Defendant Wilson. Plaintiff’s claims against Defendant Groom
are DISMISSED WITH PREJUDICE.

Date:

October 4, 2011

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

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