Bodman #511468 v. Dennis et al

Filing 36

MEMORANDUM OPINION AND ORDER ADOPTING IN PART AND REJECTING IN PART REPORT AND RECOMMENDATION 33 re 23 ; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

CHESTER RAYMOND BODMAN,
Plaintiff,
v.

Case No. 1:11-CV-600

DWAIN DENNIS, et al.,

HON. GORDON J. QUIST

Defendants.
_____________________________/

MEMORANDUM OPINION AND ORDER
ADOPTING IN PART AND REJECTING IN PART
REPORT AND RECOMMENDATION
On December 7, 2012, Magistrate Judge Ellen Carmody issued a Report and
Recommendation (R & R) (dkt. # 33) recommending that the Court grant in part and deny in part
Defendants’ Motion for Summary Judgment motion and that Plaintiff’s claims against Unknown
Party # 1 be dismissed without prejudice for failure to effect timely service. Plaintiff and
Defendants have filed Objections to the R & R. For the reasons set forth below, the Court will adopt
the R & R in part and reject it in part.
FACTUAL AND PROCEDURAL BACKGROUND
On June 8, 2011, Plaintiff, Chester Bodman, a prisoner incarcerated with the State of
Michigan, filed a pro se complaint alleging various claims pursuant to 42 U.S.C. § 1983 against
employees of the Ionia County Jail and the Ionia County Sheriff’s Department. Plaintiff’s claims
are based on events that occurred in connection with his arrest on November 20, 2009, and during
his subsequent confinement at the Ionia County Jail. On August 24, 2011, this Court entered an
Opinion and Order, pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915, dismissing most of Plaintiff’s

claims for failure to state a claim. The Court concluded that only the claims against Defendants
Pieters, Myers, Hoskins, and Badder sufficed to state a claim.1 (Dkt. ## 8, 9.)
The following are the pertinent facts regarding the claims against Defendants Pieters, Myers,
and Hoskins. On November 19, 2009, Plaintiff was involved in a serious car accident. Plaintiff fled
the scene, leaving his sole passenger, Anthony Geister, with the damaged vehicle. Several hours
later, in the early morning of November 20, 2009, Defendants Pieters, Myers, and Hoskins located
Plaintiff using information based on Plaintiff’s cell phone location. Thereafter, Pieters, Myers, and
Hoskins arrested Plaintiff and transported him to the Ionia County Jail.
The following are the pertinent facts regarding Plaintiff’s claim against Defendant Badder.
On January 1, 2010, while confined at the Ionia County Jail, Plaintiff reported that he had a seizure
for the first time in his life. In response, jail staff placed Plaintiff in a medical observation cell
overnight. He did not suffer a seizure while in the observation cell. Plaintiff was then placed in a
different cell and assigned a bottom bunk. Plaintiff alleges that shortly after his seizure a nurse gave
him a medical detail stating that Plaintiff could not climb stairs and required a bottom bunk. On
or about January 13, 2010, Defendant Badder instructed Plaintiff to move to another cell with a top
bunk assignment. Plaintiff claims that he told Defendant Badder that he had a bottom bunk detail
because he had suffered a seizure. Plaintiff alleges that Badder told Plaintiff she “needed that bunk”
and that Plaintiff “would be all right.” On March 29, 2010, Plaintiff suffered a second seizure,
during which he fell out of his top bunk and landed on his head. Plaintiff was transported to the
Ionia County Memorial Hospital for treatment.
On September 6, 2012, Defendants filed a Motion for Summary Judgment. The magistrate
judge recommended in her R & R that the motion be granted in part and denied in part.
1

The

Based on the police report that Defendants have submitted in support of their motion, it appears that Plaintiff
misnamed Defendant Myers as “Myer.” The Court will thus refer to this Defendant as Myers.

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magistrate judge recommended that the Court grant the motion with regard to any injunctive or
declaratory relief Plaintiff is seeking, but deny the motion in all other respects. Regarding the
claims against Defendants Pieters, Hoskins, and Myer, the magistrate judge recommended that the
motion be denied because the police report—the sole evidence upon which Defendants rely in
support of their motion—is hearsay and, even if it is admissible pursuant to the public records
exception to the hearsay rule, see Fed. R. Evid. 803(8), Defendants failed to properly authenticate
it. As for the claim against Defendant Badder, the magistrate judge concluded that Defendant
Badder’s evidence did not address Plaintiff’s actual claim—that Defendant Badder disregarded
Plaintiff ‘s bottom bunk medical restriction by ordering him to move to a top bunk, thereby placing
Plaintiff at substantial risk of serious harm.

Finally, the magistrate judge concluded that

Defendants’ exhaustion and qualified immunity arguments lack merit.
STANDARD OF REVIEW
Pursuant to 28 U.S.C. § 636(b)(1), if a party files written objections to a magistrate judge’s
report and recommendation, the district court must “make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which objection is made.” In
conducting such review, “the court may accept, reject, or modify, in whole or part, the findings or
recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
ANALYSIS
Defendants’ Objections
In their Objections, Defendants do not contend that the magistrate judge’s analysis of their
motion and supporting evidentiary materials was flawed. In other words, Defendants do not contend
that the magistrate judge erred in concluding that Defendants failed to properly authenticate the
police report or that Defendants’ evidence regarding the claim against Defendant Badder failed to
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address Plaintiff’s actual claim. Instead, Defendants offer new evidence that was not available to
the magistrate judge to consider, including: (1) an affidavit from Beverly Young, Ionia County
Sheriff’s Department Records Custodian; (2) an affidavit from Kay Marsden, a Corrections Officer
who administered the medical questionnaire to Plaintiff when he was booked in to the Ionia County
Jail on November 20, 2009; (3) an affidavit from Mark Jones, the Ionia County Jail Administrator;
and (4) an affidavit from Defendant Badder. (Dkt. ## 34-1–34-4.)
In light of these new materials, the Court must decide whether it has discretion to consider
evidentiary materials presented for the first time in objections to a report and recommendation and,
if so, whether the Court should exercise its discretion to consider those new materials. Although
the Sixth Circuit has not definitively addressed the issue, several circuits, including the First,
Second, Third, Fifth, Seventh, Ninth and Eleventh Circuits have recognized that district courts have
discretion to consider new evidence when resolving objections to a magistrate judge’s report and
recommendation. See Clark v. United States, 360 F. App’x 660, 663 (7th Cir. 2009) (“The district
court, in adopting the magistrate judge’s report and recommendation, did not abuse its discretion
by refusing to consider the late-submitted affidavit and indulge [plaintiff’s] belated attempt to
change his story.”); Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009) (holding that a district
court has discretion to consider arguments and evidence presented for the first time in an objection
to a report and recommendation); Jasty v. Wright Med. Tech., Inc., 528 F.3d 28, 33 (1st Cir. 2008)
(“Under 28 U.S.C. § 636(b), a district court reviewing a magistrate judge’s report and
recommendation has discretion whether to receive further evidence.”); United States v. Howell, 231
F.3d 615, 621 (9th Cir. 2000) (holding that “a district court has discretion, but is not required, to
consider evidence presented for the first time in a party’s objection to a magistrate judge’s
recommendation”); Carpet Grp. Int’l v. Oriental Rug importers Ass’n, Inc., 227 F.3d 62, 70–71 (3d
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Cir. 2000) (citing United States v. Raddatz, 447 U.S. 667, 673–74, 100 S. Ct. 2406, 2411 (1980)),
overruled on other grounds, Animal Sci. Prods., Inc. v. China Minmetals Corp., 654 F.3d 462 (3d
Cir. 2011) (holding that “where a District Court reviews a Magistrate Judge’s report and
recommendation regarding a dispositive motion, the Court has discretion whether to consider
additional evidence not presented to the Magistrate Judge”); Freeman v. County of Bexar, 142 F.3d
848, 852–53 (5th Cir. 1998) (recognizing a district court’s discretion to receive new evidence on de
novo review but observing that “[l]itigants may not . . . use the magistrate judge as a mere soundingboard for the sufficiency of evidence”); Hynes v. Squillace, 143 F.3d 653, 656 (2d Cir. 1998) (noting
that “the district court had discretion to consider evidence that had not been submitted to the
Magistrate Judge”). In an unreported order in Muhammad v. Close, No. 08-1944, 2009 WL
8755520 (6th Cir. 2009), the Sixth Circuit cited both the Ninth Circuit’s decision in Howell and the
Fifth Circuit’s decision in Freeman with approval, noted that the district court’s ruling did not
reflect an actual exercise of discretion to consider an affidavit that the plaintiff first presented in his
objections to a report and recommendation, and remanded the case to the district court to exercise
its discretion to consider the plaintiff’s new evidence. See id. at *2–3. Thus, the Sixth Circuit
implicitly recognized that district courts have discretion to consider new materials in deciding
objections to reports and recommendations.
In light of the foregoing, the Court concludes that it has discretion to consider the new
evidence Defendants present in their Objections. The Court further concludes that it should exercise
its discretion to consider Defendants’ new evidence because Plaintiff has had an opportunity to
respond to the new evidence and does not object to it.
With regard to Plaintiff’s claim against Defendants Pieters, Myers, and Hoskins, Defendants
argue that the police report is admissible under the business records exception to the hearsay rule.
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Defendants further argue that the affidavit of Beverly Young properly authenticates the police report
as a business record. Defendants further contend that the affidavit of Kay Marsden properly
authenticates as a business record the medical questionnaire that was completed for Plaintiff when
he was booked into the jail. As the magistrate judge correctly observed, matters reported in a police
report based on an officer’s first-hand observations may be admitted pursuant to the public records
exception under Federal Rule of Evidence 803(8). See MSC Mediterranean Shipping Co. SA,
Geneva v. Metal Worldwide, Inc., 884 F. Supp. 2d 1277, 1281–82 (S.D. Fla. 2012) (observing that
entries in a police report based on an officer’s own observations and knowledge may be admitted
as a public record, while statements made by third persons under no duty to report may not be
admitted under this exception); Brewton v. City of New York, 550 F. Supp. 2d 355, 361 n.5
(E.D.N.Y. 2008) (“To the extent that the police report contains Detective Hovington’s personal
observations, the report itself is admissible as a public record pursuant to Fed. R. Evid. 803(8)”).
In addition, “entries in a police report which result from the officer’s own observations and
knowledge may be admitted [as a business record].” United States v. Pazsint, 703 F.2d 420, 424
(9th Cir. 1983); see also Jenkins v. City of New York, No. 10 Civ. 4535(AJN), 2013 WL 870258, at
*2 (S.D.N.Y. Mar. 6, 2013) (noting that “entries in a police report based on an officer’s own
observations and knowledge may be admitted as business records”). Moreover, the Court concludes
that the Young affidavit (dkt. # 34-1) properly authenticates the police report as both a business
record and a public record, to the extent statements in the report are by law enforcement officers
having a duty to report such information.
In light of the police report and the medical questionnaire, authenticated by the Marsden
affidavit (dkt. # 34-2), the Court concludes that Defendants Pieters, Meyers and Hoskins are entitled
to summary judgment. Plaintiff claims that these Defendants failed to provide him medical
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treatment when they arrested him. In order to establish his claim, Plaintiff must show that
Defendants were deliberately indifferent to Plaintiff’s serious medical needs. See Harris v. City of
Circleville, 583 F.3d 356, 367 (6th Cir. 2009). In the police report, Defendant Myers stated that he
was present when Plaintiff came out of his trailer and asked Plaintiff if he had any injuries from the
accident, and Plaintiff responded that “he did not.” (Dkt. # 24-1 at Page ID 118.) Given Plaintiff’s
statement, Defendants had no reason to believe that Plaintiff required medical attention. This
conclusion is buttressed by the medical intake questionnaire (dkt. # 34-2), which reported that
Plaintiff did not have obvious pain, bleeding, or other symptoms suggesting the need for emergency
medical services. Plaintiff cannot dispute this evidence based on his own personal knowledge
because he admits in his complaint that he does not “remember much after the crash including:
leaving the scene, being arrested, being booked into jail, being finger printed, being photographed,
or even the interrogation the following day.” (Dkt. # 1.) Plaintiff argues in his response to
Defendants’ Objections that the police report supports his claim that he required medical attention
because it states that his family members (who apparently had spoken with Plaintiff on his cell
phone after he fled the accident scene) notified the Ionia County Jail that Plaintiff was possibly
spitting up blood and had a possible internal injury. This portion of the police report, however, is
based on multiple levels of hearsay that are not admissible as a business or public record or under
any other hearsay exception. Accordingly Plaintiff has failed to present any admissible evidence
to show that Defendants were deliberately indifferent to Plaintiff’s serious medical needs.
With regard to Plaintiff’s claim against Defendant Badder, Defendants contend that Plaintiff
cannot demonstrate that Defendant Badder was deliberately indifferent. Defendant Badder states
in her affidavit that she had no knowledge of Plaintiff’s prior seizure because Plaintiff did not
mention that he had a prior history of seizures requiring a bottom bunk, nor did Plaintiff show
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Defendant Badder his medical detail stating that Plaintiff required a bottom bunk. (Dkt. #34-4.)
Although Plaintiff has not offered an affidavit contradicting Defendant Badder’s affidavit, Plaintiff
alleges in his complaint that he twice told Defendant Badder that he required a bottom bunk but
Defendant Badder ignored this information. This allegation may be considered for summary
judgment purposes because Plaintiff included a statement at the end of his complaint swearing to
the truth of his allegations under penalty of perjury, in substantial compliance with 28 U.S.C. §
1746. See Bonds v. Cox, 20 F.3d 697, 704 n.2 (6th Cir. 1994) (stating that “28 U.S.C. § 1746
requires only substantial compliance with its terms”). Given Plaintiff’s allegation, the Court
concludes that Plaintiff has created a genuine issue of material fact as to whether Defendant Badder
was deliberately indifferent to a substantial risk of harm. Therefore, the magistrate judge did not
err in recommending denial of summary judgment on Plaintiff’s claim against Defendant Badder.
Plaintiff’s Objection
The magistrate judge concluded that Plaintiff’s claim against Unknown Party #1 should be
dismissed without prejudice because Plaintiff has failed to provide identifying information for this
individual after more than twelve months had elapsed since Plaintiff filed his complaint. The
magistrate judge found that Plaintiff’s lack of diligence in attempting to identify Unknown Party #1
demonstrated that Plaintiff did not have good cause for failing to serve this individual within the
time specified by Rule 4(m) of the Federal Rules of Civil Procedure. In his Objection, Plaintiff
states that he should not be held responsible for the failure to identify Unknown Party #1 because
Defendants failed to provide such information in response to Plaintiff’s discovery request.
Plaintiff’s recourse, however, was to file a motion to compel Defendants to respond to his discovery
request. Having failed to file such a motion, Plaintiff may not complain that Defendants were not
forthcoming with this information. Therefore, the Court will overrule Plaintiff’s Objection.
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CONCLUSION
For the foregoing reasons, the Court will grant Defendants’ Objections in part and overrule
them in part and overrule Plaintiff’s Objection. Accordingly, the Court will adopt the R & R in part
and reject it in part.
Therefore,
IT IS HEREBY ORDERED that Defendants’ Objections to the Magistrate Judge’s Report
and Recommendation (dkt. # 34) are GRANTED IN PART AND OVERRULED IN PART.
Defendants’ Objections are granted with regard to Plaintiff’s claims against Defendants Pieters,
Myers, and Hoskins and overruled with regard to the claim against Defendant Badder.
IT IS FURTHER ORDERED that Plaintiff’s Objection (dkt. #35) is OVERRULED.
IT IS FURTHER ORDERED that the Magistrate Judge’s December 7, 2012 Report and
Recommendation (dkt. #33) is ADOPTED with regard to Plaintiff’s claim against Defendant
Badder and REJECTED with regard to Plaintiff’s claims against Defendants Pieters, Myers, and
Hoskins.
IT IS FURTHER ORDERED that Defendants’ Motion For Summary Judgment (dkt. #23)
is GRANTED IN PART AND DENIED IN PART. The motion is granted with regard to the
claims against Defendants Pieters, Myers, and Hoskins and denied with regard to the claim against
Defendant Badder.

Dated: June 6, 2013

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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