Jackson #171107 v. Nelson et al
Filing
64
OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 54 ; denying objections 60 and second notice for enlargement 62 ; granting motions for summary judgment 20 , 24 , 27 ; the Court certifies that an appeal of the Judgment would not be taken in good faith; signed by Judge Janet T. Neff (Judge Janet T. Neff, rmw)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ARTHUR JACKSON,
Plaintiff,
Case No. 1:13-cv-827
v
HON. JANET T. NEFF
WILLIAM NELSON, et al.,
Defendants.
_______________________________/
OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. This Court
previously dismissed Plaintiff’s claims save his denial of medical treatment claims asserted against
Defendants Nelson, Wilkinson, and Burdette. Defendants each moved for summary judgment on
the ground that Plaintiff has failed to properly exhaust his administrative remedies, and the matter
was referred to the Magistrate Judge. On August 6, 2014, the Magistrate Judge issued a Report and
Recommendation (R&R, Dkt 54), recommending that this Court grant the motions. The Magistrate
Judge indicated that objections to the Report and Recommendation “must be filed with the Clerk of
Court within fourteen (14) days of the date of service of this notice” and that “[f]ailure to file
objections within the specified time waives the right to appeal the District Court’s order” (id. at 9).
On August 25, 2014, Plaintiff filed a “Motion for Enlargement” (Dkt 56), seeking an
unspecified extension of time to file a response to the Report and Recommendation. The Court
granted the request “to the extent that Plaintiff will be given an extension of time, until September
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12, 2014, to file his response, if any, to the Report and Recommendation” (Dkt 57). On September
17, 2014, Plaintiff filed twelve objections to the Report and Recommendation (Dkt 60). Plaintiff
also filed a “Second Notice for Enlargement,” seeking an unspecified extension of time “due to this
plaintiff making some objections but failing to raise others” (Dkt 62). Defendants did not file a
response to Plaintiff’s objections or motion.
In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b)(3), the Court has
performed de novo consideration of those portions of the Report and Recommendation to which
objections have been made. The Court denies the objections, denies the motion for a second
extension of time, and issues this Opinion and Order.
I. Plaintiff’s Objections
The Magistrate Judge examined evidence of thirty-two grievances that Plaintiff pursued
through all three steps of the prison grievance process and concluded that Defendants carried their
burden of demonstrating that Plaintiff has failed to properly exhaust any of his remaining claims in
this case (R&R, Dkt 54 at 5, 9). The Magistrate Judge found that the majority of the grievances
could not serve to exhaust any of the claims asserted in the present action because Plaintiff initiated
the present action on July 27, 2013, before receiving a Step III grievance response and before the
expiration of the 120-day grievance response period (id. at 6-7). The Magistrate Judge found that
the remaining grievances either were not asserted against Defendants Wilkinson, Burdette, or Nelson
or did not concern Plaintiff’s denial of medical treatment claims against these Defendants (id. at 8).
Last, given that Plaintiff initiated the present action on July 27, 2013, the Magistrate Judge rejected
as “legally irrelevant” Plaintiff’s argument that his obligation to pursue all available administrative
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remedies was somehow excused because he was on modified grievance access from August 1, 2013,
through November 1, 2013 (R&R, Dkt 54 at 8).
Plaintiff makes twelve objections to the Report and Recommendation, the majority of which
are one-sentence objections. First, Plaintiff argues that the Magistrate Judge erred in failing to give
him an opportunity to amend his complaint (Objs., Dkt 60 at 1). However, Plaintiff did not move
to amend his complaint and does not, even in his objections, indicate how he proposes to amend his
complaint to cure the exhaustion deficiencies. Therefore, Plaintiff’s Objection I is denied.
Next, Plaintiff argues that the Magistrate Judge “failed to acknowledge the facts [sic] that
I did not mail my civil complaint until I had been placed on ‘Modified Grievance Status’” (Objs.,
Dkt 60 at 1). However, as the Magistrate Judge explained, “even if subsequently being placed on
modified grievance status prevented Plaintiff from pursuing grievances, something Plaintiff has not
established, such would nevertheless be irrelevant as it concerns the period of time after Plaintiff
initiated the present action” (R&R, Dkt 54 at 8). Therefore, Plaintiff’s Objection II is denied.
Next, Plaintiff asserts that there are “genuine issues of material fact as to whether state
inmate exhausted his administrative remedies and whether prison officials prevented inmate from
filing grievances and exhausting his administrative remedies” (Objs., Dkt 60 at 2, citing Surles v.
Andison, 678 F.3d 452 (6th Cir. 2012)). Plaintiff’s mere quotation of the editor’s head note from
Surles does not serve to point the Court to any issues of material fact precluding summary judgment
in this case, nor does the quotation serve to “specifically identify the portions of the proposed
findings, recommendations or report to which objections are made and the basis for such objections,”
as required by this Court’s local rules. See W.D. Mich. LCivR 72.3(b). Therefore, Plaintiff’s
Objection III is denied.
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Next, citing Lawrence v. Goord, 238 F.3d 182 (2d Cir. 2001), Plaintiff points out that “[t]his
plaintiff/inmate objected to the defendants’ dispute of material fact existing as to whether defendants
and other MDOC employees prevented this prisoner from filing grievances and exhausting his
administrative remedies” (Objs., Dkt 60 at 2). In Lawrence, the Second Circuit Court of Appeals
held that “inmates need not exhaust their administrative remedies before bringing suit for
particularized instances of retaliation.” Id. at 186. However, the United States Supreme Court
vacated the Second Circuit’s decision in light of its decision in Porter v. Nussle, 534 U.S. 516, 532
(2002), where the Supreme Court held that the PLRA’s exhaustion requirement “applies to all inmate
suits about prison life, whether they involve general circumstances or particular episodes, and
whether they allege excessive force or some other wrong.” 535 U.S. 901 (2002). Therefore,
Plaintiff’s Objection IV is denied.
Next, Plaintiff argues that “the record/complaint shows genuine issue of material fact as to
this inmate being subjected to imminent danger via subjective recklessness” (Objs., Dkt 60 at 2-3).
However, as the Magistrate Judge explained, “a prisoner asserting an action with respect to prison
conditions under 42 U.S.C. § 1983 must first exhaust all available administrative remedies” (R&R,
Dkt 54 at 4, citing Porter, 534 U.S. at 524). Plaintiff’s argument fails to demonstrate any factual or
legal error by the Magistrate Judge in deciding, as a threshold matter, that Plaintiff has failed to
properly exhaust his remaining claims in this case. Therefore, Plaintiff’s Objection V is denied.
Next, Plaintiff argues the Grievance Coordinator violated relevant policy in “refusing to file,
delaying the process and retaliatory [sic] subjecting this inmate to ‘Grievance Restriction’” (Objs.,
Dkt 60 at 3). Again, the exhaustion requirement applies to all inmate suits about prison life,
including alleged instances of retaliation, Porter, 534 U.S. at 532, and the Magistrate Judge
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expressly rejected as “legally irrelevant” Plaintiff’s argument that his obligation to pursue all
available administrative remedies was somehow excused because he was on modified grievance
access (R&R, Dkt 54 at 8). Plaintiff’s Objection VI is therefore denied.
Next, Plaintiff asserts that he filed “grievances to address and expose Defendants’
corruptional [sic] cruel and retaliatory acts or omissions,” “a complaint with the State Police,” and
“complaints to the Ombudsman Keith Barber” (Objs., Dkt 60 at 3). Plaintiff does not address the
purported import of these filings or identify the portions of the Report and Recommendation to
which these “objections” are made or the bases for such objections, see W.D. Mich. LCivR 72.3(b),
and the Court declines to speculate or piece together an argument for Plaintiff. See InterRoyal Corp.
v. Sponseller, 889 F.2d 108, 111 (6th Cir. 1989) (“A district court is not required to speculate on
which portion of the record the nonmoving party relies, nor is it obligated to wade through and
search the entire record for some specific facts that might support the nonmoving party’s claim.”);
Guarino v. Brookfield Twp. Trustees, 980 F.2d 399, 404 n.5 (6th Cir. 1992) (collecting cases).
Plaintiff’s Objections VII, VIII and IX are denied.
Next, Plaintiff contends that the Magistrate Judge “consented with the defendants, even in
the face of ‘imminent danger’ and ‘the fear of death’ and ‘pain and suffering’ ... while disregarding
plaintiff’s affidavit of grievances” (Objs., Dkt 60 at 4). Plaintiff’s contention fails to demonstrate
any factual or legal error in the Magistrate Judge’s analysis or conclusion. As for the apparent
charge of bias, “judicial rulings alone almost never constitute a valid basis for a bias or partiality
motion.” Liteky v. United States, 510 U.S. 540, 555 (1994). See, e.g., Traficant v. C.I.R., 884 F.2d
258, 267 (6th Cir. 1989) (holding that the plaintiff failed to demonstrate bias where the plaintiff
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pointed to episodes that were “nothing more than the Judge’s rulings against Traficant on the
merits”). Therefore, Plaintiff’s Objection X is denied.
Next, Plaintiff argues that the Magistrate Judge “mistakenly disregarded the law” regarding
the date on which his complaint is deemed filed (Objs., Dkt 60 at 4). Plaintiff’s argument is
unavailing. The Magistrate Judge expressly noted that while the Court received and docketed
Plaintiff’s complaint on August 1, 2013, “Plaintiff signed his complaint (and presumably submitted
it for mailing) on July 27, 2013” (R&R, Dkt 54 at 1 n.1). Thus, the Magistrate Judge concluded that
Plaintiff’s complaint was deemed filed as of July 27, 2013 (id., citing Brand v. Motley, 526 F.3d 921,
925 (6th Cir. 2008) (stating the “prison mailbox rule”)). Plaintiff’s Objection XI is therefore denied.
Last, Plaintiff opines that “[t]he issues raised supported a continual aiding and abet [sic] of
the claims raised in 2:13-cv-17 exhausted per retaliations, cruelty, deliberate indifferent [sic],
imminent danger, loss of blood and possibly cancer” (Objs., Dkt 60 at 4). Plaintiff’s reference to
a case he filed last November does not serve to identify the portions of the Report and
Recommendation in this case to which his objection is made or the basis for such objection. See
W.D. Mich. LCivR 72.3(b). Therefore, Plaintiff’s Objection XII is denied.
In sum, Plaintiff’s twelve objections fail to demonstrate that a disposition different from the
Magistrate Judge’s recommendation is warranted.
II. Plaintiff’s “Second Notice for Enlargement”
This Court may, in its discretion and upon a showing of “good cause,” extend the time for
a party to file objections. See FED. R. CIV. P. 6; Chandler v. Jackson, 132 F.3d 32 (6th Cir. 1997).
As noted, this Court granted Plaintiff’s first request for an extension of time and extended the
deadline for filing objections. This is Plaintiff’s second request for an additional unspecified amount
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of time to supplement the twelve objections he filed. Plaintiff does not indicate the substance of his
proposed additional objections. Moreover, Plaintiff has failed to explain or identify any reason why
he was precluded from filing all of his objections to the Report and Recommendation on the deadline
previously extended by the Court. Indeed, his ability to file the present twelve objections to the
Magistrate Judge’s Report and Recommendation belies the presence of any obstacle that prevented
him from filing all of his objections at one time. In short, having considered Plaintiff’s request and
the circumstances of this case, the Court discerns no good cause for an additional delay and therefore
denies Plaintiff’s “Second Notice for Enlargement.” See, e.g., Erby v. Nobles, 932 F.2d 967, at *1
(6th Cir. 1991) (holding the district court did not abuse its discretion in denying the plaintiff’s
motion for an extension of time where the plaintiff “did not even attempt to show cause”).
Accordingly, this Court adopts the Magistrate Judge’s Report and Recommendation as the
Opinion of this Court. Because this Opinion and Order resolves the last pending claim in this case,
the Court will enter a Judgment. See FED. R. CIV. P. 58. This action was filed in forma pauperis,
and this Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal of the Judgment would
not be taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601, 610 (6th Cir. 1997),
overruled on other grounds by Jones v. Bock, 549 U.S. 199, 206, 211-12 (2007). Therefore:
IT IS HEREBY ORDERED that Plaintiff’s Objections (Dkt 60) are DENIED, Plaintiff’s
“Second Notice for Enlargement” (Dkt 62) is DENIED, and the Report and Recommendation (Dkt
54) is APPROVED and ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendant Wilkinson’s Motion for Summary Judgment
(Dkt 20) is GRANTED.
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IT IS FURTHER ORDERED that Defendant Burdette’s Motion for Summary Judgment
(Dkt 24) is GRANTED.
IT IS FURTHER ORDERED that Defendant Nelson’s Motion for Summary Judgment
(Dkt 27) is GRANTED.
IT IS FURTHER ORDERED that the Court certifies pursuant to 28 U.S.C. § 1915(a) that
an appeal of the Judgment would not be taken in good faith.
Dated: September 30, 2014
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
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