Moore #223268 v. Smith et al
ORDER ADOPTING REPORT AND RECOMMENDATION 94 re 82 ; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:13-CV-881
WILLIE O. SMITH, et al.,
HON. GORDON J. QUIST
ORDER ADOPTING REPORT AND RECOMMENDATION
On March 3, 2017, Magistrate Ray Kent issued a Report and Recommendation (R & R)
recommending that the Court (1) grant Defendants’ motion for summary judgement as to all claims
except Plaintiff’s claim against Defendants Smith, Krick, and Kipp regarding a lack of ventilation;
(2) dismiss Plaintiff’s First and Eighth Amendment claims against Defendants Smith, Krick and
Kipp; and (3) dismiss Defendants Treiweiler, Klatt, Showers, Miller, Christiansen, Sanchez, Clark,
Hynesbach and Stott from the action. (ECF No. 94.) Defendants and Plaintiff both filed objections
to the R & R. (ECF No. 100, 101.)
Upon receiving objections to a report and recommendation, the district judge “shall make
a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). After conducting a de novo
review of the R & R, the parties’ objections, and the pertinent portions of the record, the Court
concludes that the R & R should be adopted. The Court also concludes that Plaintiff’s claims for
injunctive relief should be denied as moot.
Claims Regarding Ventilation
The magistrate judge denied Defendants’ motion for summary judgment as to Plaintiff’s
claims regarding improper ventilation because Defendants’ brief in support of their motion did not
even address the issue. (ECF No. 94 at PageID.634-35.) Defendants raise two “objections” with
this part of the R & R, arguing that (1) they are entitled to summary judgment based on qualified
immunity; and (2) the claim fails as a matter of law because Plaintiff did not demonstrate deliberate
The “Magistrate Judge Act, 28 U.S.C. § 631 et seq., permits de novo review by the district
court if timely objections are filed, [but], absent compelling reasons, it does not allow parties to raise
at the district court stage new arguments or issues that were not presented to the magistrate.” Murr
v. United States, 200 F.3d 895, 902 n.1 (6th Cir. 2000) (citing United States v. Waters, 158 F.3d 933,
936 (6th Cir.1998)). Defendants note that their failure to address the issue before the magistrate
judge was “an inadvertent oversight,” and that they “genuinely regret the error, and sincerely
attempted to address all of the myriad claims raised against 12 separate defendants.” (ECF No. 100
at PageID.655-56.) Nonetheless, Defendants fail to offer compelling reason. The Court will not
consider this objection.
Defendants’ next “objection” is that Plaintiff lacks Article III standing to seek injunctive
relief. (ECF No. 100 at PageID.12.) “Article III, § 2, of the Constitution limits the jurisdiction of
federal courts to ‘Cases’ and ‘Controversies,’ which restricts the authority of federal courts to
resolving ‘the legal rights of litigants in actual controversies.’” Genesis Healthcare Corp. v.
Symczyk, 133 S. Ct. 1523, 1528 (2013) (quoting Valley Forge Christian College v. Americans
United for Separation of Church and State, Inc., 454 U.S. 464, 471, 102 S. Ct. 752, 757 (1982)).
“A corollary to this case-or-controversy requirement is that an actual controversy must be
extant at all stages of review, not merely at the time the complaint is filed.” Id. (internal quotation
marks omitted). A claim is considered as moot, and must be dismissed, “if an intervening
circumstance deprives the plaintiff of a ‘personal stake in the outcome of the lawsuit.’” Id. (quoting
Lewis v. Continental Bank Corp., 494 U.S. 472, 477–478, 110 S. Ct. 1249, 1254 (1990) (internal
quotation marks omitted). And, unlike Defendants’ other arguments, the “existence of subject
matter jurisdiction may be raised at any time, by any party, or even sua sponte by the court itself.”
In re Lewis, 398 F.3d 735, 739 (6th Cir.2005) (citing Cmty. Health Plan of Ohio v. Mosser, 347 F.3d
619, 622 (6th Cir.2003)).
Defendants argue that Plaintiff lacks standing to seek injunctive relief at the Carson City
facility because he has been transferred out of that facility. (ECF No. 100 at PageID.12.) Claims
seeking injunctive relief are properly dismissed as moot when an inmate-plaintiff is transferred from
a facility where a violation takes place to another facility where there is no violation. See Colvin
v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010); Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996).
Since Plaintiff has been transferred to another facility, his claim for injunctive relief is moot.
Plaintiff objects to the dismissal of Defendant Clark because (1) Clark’s counsel failed to
file an attorney appearance and (2) Plaintiff alleges that Clark has been in default since June of 2015.
Neither objection has merit. Defense counsel made arguments on Clark’s behalf in support of
summary judgment (see ECF No. 83 at PageID.295) and this Court did not enter a default judgment
against Clark. (ECF No. 64.) Plaintiff is not automatically entitled to a default judgment against
a defaulting party, particularly when the evidence shows there is no basis for liability. This
objection is overruled.
The R & R recommended summary judgment for Defendant Miller because “Plaintiff
testified that RUM Miller is a defendant only because she responded to his grievances… [and a]
prison official whose only role involved the denial of an administrative grievance cannot be liable
under § 1983.” (ECF No. 94 at PageID.626.) Plaintiff objects to this conclusion, and argues that
his testimony was taken out of context, and that Miller is liable because she denied Plaintiff’s
grievances “at Step II, when the evidence presented was overwhelming [sic] in plaintiff’s favor…
[and] Miller clearly failed to hold her subordinates accountable whenever she responded to
plaintiff’s grievances.” (ECF No. 101 at PageID.672.) Plaintiff cites no portion of the record to
support his argument, and “[i]t is well-settled that ‘[g]overnment officials may not be held liable for
the unconstitutional conduct of their subordinates under the theory of respondeat superior.’”
Peatross v. City of Memphis, 818 F.3d 233, 241 (6th Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 676, 129 S. Ct. 1937, 1948, 173 L. Ed. 2d 868 (2009)). This objection is overruled.
The magistrate judge concluded that Plaintiff failed to satisfy the subjective prong of a
deliberate indifference claim because the “record reflects that defendants did not ignore plaintiff’s
grievance regarding the bleach dilution. Rather, the grievance was investigated, the problem
acknowledged, and DRF staff and prisoners were instructed to use the bleach and other cleaning
materials as intended.” (ECF No. 94 at PageID.633.) Plaintiff objects, and “contends that the
Defendants did ignore plaintiffs [sic] grievance regarding the bleach dilution. The Defendants may
have responded on paper to look good but they deliberately failed to respond by continuing to predilute the bleach past the March 23, 2012 date and into 2013.” (ECF No. 101 at PageID.675.)
Again, Plaintiff fails to cite any affidavit or deposition testimony that supports this account of
events. Plaintiff’s objection is overruled.
Plaintiff also objects to the magistrate judge’s conclusion that he failed to satisfy the
objective component of a deliberate indifference claim. Even assuming that to be true, Plaintiff
failed to satisfy the subjective component of the Eighth Amendment claim.
The magistrate judge recommended against finding that Defendants were entitled to qualified
immunity because they simply failed to come forward with any facts or argument suggesting that
they were acting within the scope of discretionary authority. (ECF No. 94 at PageID.641.) Plaintiff
seems to have misconstrued the R & R, and objects to a recommendation that it did not make: that
Defendants are entitled to qualified immunity. Plaintiff’s objection is moot.
It is hereby ORDERED that the Report and Recommendation (ECF No. 94) is ADOPTED.
IT IS FURTHER ORDERED that Plaintiff’s request for injunctive relief is DENIED as
Dated: March 28, 2017
/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE
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