Davis #223815 v. Michigan Department of Corrections et al
OPINION and ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 43 ; granting Defendants motion for summary judgment 24 , and the remaining state law claims against Defendants are dismissed; 44 termed ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 1:13-CV-1231
HON. ROBERT J. JONKER
MICHIGAN DEPARTMENT OF
CORRECTIONS, et al.
OPINION AND ORDER
RE REPORT AND RECOMMENDATION
The matter before the Court is the Magistrate Judge’s Report and Recommendation
(docket no. 43), recommending that the Defendants’ motion for summary judgment (docket no.
24) be granted and state law claims dismissed. The Plaintiff has filed a set of Objections to the
Magistrate Judge’s Report and Recommendation (docket no. 45).
I. STANDARD OF REVIEW
Under the Federal Rules of Civil Procedure, where a party has objected to portions of a
Report and Recommendation, “[t]he district judge . . . has a duty to reject the magistrate judge’s
recommendation unless, on de novo reconsideration, he or she finds it justified.” 12 WRIGHT,
M ILLER & M ARCUS, FEDERAL PRACTICE AND PROCEDURE § 3070.2, at 381 (2d ed. 1997).
Specifically, the Rules provide that:
The district judge to whom the case is assigned shall make a de novo
determination upon the record, or after additional evidence, of any portion of the
magistrate judge’s disposition to which specific written objection has been made
in accordance with this rule. The district judge may accept, reject, or modify the
recommended decision, receive further evidence, or recommit the matter to the
magistrate judge with instructions.
FED. R. CIV. P. 72(b). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).
The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge, the
Report and Recommendation itself, and the Plaintiff’s Objections to the Magistrate’s Report and
Recommendation. After its review, the Court approves and adopts the Magistrate Judge’s Report
This case involves Plaintiff Davis’s claim that he was retaliated against by numerous
MDOC officers, particularly Defendants Dulaney and Darnell, in response to a grievance that
he filed. The alleged sequence of events is long, and aptly summarized by the Magistrate Judge.
Put briefly, Plaintiff alleges that he filed a grievance, and then on June 24, 2013, he was
inappropriately harassed as well as tased in the facility’s recreational yard. Thereafter, he was
taken to punitive segregation, where he remained for days without his TENS unit, a medical
device which he uses for pain treatment and relief, despite the fact that he allegedly asked several
officers to retrieve the unit. By contrast, MDOC records reflect that Plaintiff was the aggressor;
at an administrative hearing on July 1, 2013, Plaintiff was convicted for insolent behavior as well
as assault and battery in the recreational yard. Plaintiff asserted various claims, including
retaliation, equal protection, cruel and unusual punishment, violation of due process, violations
of state law, inhumane treatment, discrimination, and harassment.
The Report and Recommendation carefully reviews the record and examines the relevant
law. The Court finds the Magistrate Judge’s Report and Recommendation to be well-reasoned
and thorough, and accordingly adopts its conclusion.
II. DAVIS’S OBJECTIONS
A. Objection No. 1: Plaintiff’s Conviction for Assault and Battery
Plaintiff Davis notes that the “assault and battery in question was not against the
defendant Darnell.” (Docket no. 45, Obj. at 1, PageID # 372.) The misconduct report cited by
Plaintiff states that Plaintiff “threatened officer Darnell, Davis had been tased twice with little
effect and was still being [uncooperative] as we walked thru [sic] the gate area Davis turned and
pulled away from this officer.” (Docket no. 25-6, Report at 11, PageID # 235.) The Court
cannot identify the basis for the objection, but in any event, notes that even if the Report and
Recommendation conflated Defendant Dulaney for Darnell, or Defendant Dulaney for Cooper,
that it does not undermine its thorough recitation of the facts and its conclusions of law.
B. Objection No. 2: Verification
Plaintiff argues that his complaint should be given the weight of an affidavit under the
authority of Brown v. Waters, 959 F.2d 233 (6th Cir. 1992) (unpublished decision). (Docket no.
45, Obj. at 2, PageID # 373.) The Report and Recommendation found that the Complaint did
not comply with the requirements of 28 U.S.C. section 1746. (Docket no. 43, Report at 8,
PageID # 351.) Section 1746 states that verification must be or substantially be in the following
form: “I declare (or certify, verify, or state) under penalty of perjury that the foregoing is true
and correct.” 28 U.S.C. § 1746(2).
In Brown, the Sixth Circuit partially upheld a district court’s judgment adopting a Report
and Recommendation, but vacated the district court’s judgment on a defendant’s cruel and
unusual punishment claim. Id. at *1–2. It did so because “Brown's allegations . . . were made
in a verified complaint. Although unsworn, the verified complaint is sufficient to defeat
defendants' motion for summary judgment on this issue because Brown signed the document
under penalty of perjury.” Id. The Plaintiff’s argument that he used practically the same
language in his verification as did the plaintiff in Brown is not supported by the case. The case
indicates only that Brown’s complaint was verified, not why it was so. Id.
This objection therefore does not undercut the Report and Recommendation’s analysis
that his “true and correct to the best of my knowledge and understanding” does not amount to
a declaration authorized by 28 U.S.C. section 1746, or under the various case law cited in the
Report and Recommendation. (Docket no. 43, Report at 8, PageID # 351.)
C. Objection No. 3: Personal Knowledge
The Report and Recommendation also found that Plaintiff’s Complaint did not create a
genuine issue of material fact. Plaintiff argues that his Complaint is indeed based on personal
knowledge. (Docket no. 45, Obj. at 2, PageID # 373.) The Report and Recommendation noted
various authority requiring that even pro se defendants assert facts that are based on more than
the Plaintiff’s “to the best of my . . . understanding” language. (Docket no. 43, Report at 9,
PageID # 352.) The Plaintiff expresses dissatisfaction with the result reached, but points to no
authority or otherwise raises any issue undermining the Report and Recommendation’s analysis.
D. Objection No. 4: Exhaustion
Plaintiff objects to the Report and Recommendation’s conclusion that he has not properly
exhausted his claims against Defendants Lehman and Cooper, and some of his claims against
Defendants Dulaney and Darnell. Plaintiff argues that, within the body of grievance 766, that
he did in fact describe the actions of all of the Defendants. Plaintiff does state in Step I that he
was writing his grievance against Officers Dulaney and Darnell, as well as “all the other officers”
who helped carry out the act of retaliation. (Docket no. 35-1, Attachment A at 5, PageID # 299.)
But his description of the act of retaliation relates only to the conduct in the recreational
yard involving those two Defendants. While Defendant Cooper may have been in the general
area, the information listed in the grievance does not identify any sort of retaliatory act
committed by a John Doe. Even viewing the open-ended language concerning the identity of
the officers in the light most favorable to the Plaintiff, it does not support his claim that he
properly exhausted his claims against Officer Lehman or Officer Cooper, nor any other claims
against Officers Dulaney and Darnell. The Report and Recommendation therefore reached the
correct conclusion, that only the retaliation claim against Officer Dulaney and Officer Darnell
were properly exhausted and were therefore the only claims that should survive the Defendants’
motion for summary judgment.
Plaintiff also objects, arguing that grievance 722 did in fact apply to material alleged in
his complaint. The Report and Recommendation stated that it did not. (Docket no. 43, Report
at 13, PageID # 356.) Grievance 722 addresses a June 16, 2013 incident between Plaintiff and
Officer Dulaney concerning use of the bathroom, as the Report and Recommendation correctly
notes. (Docket no. 25-3, Ex. B at 11, PageID # 205.) Davis’s complaint states that on June 17,
2013, he filed a grievance concerning this matter, and that on June 24, 2013, Defendant Dulaney
approached him concerning this grievance, and that this is when the alleged retaliation began.
(Docket no. 1, Compl. at 8 ¶¶ 1–2, PageID # 8.) Under Plaintiff’s view of the case, this appears
to be the event that set the sequence in motion. The Court therefore agrees with the Plaintiff that
the content of grievance 722 applies to material in his complaint, but observes that it relates only
to Defendant Dulaney’s alleged retaliation, which the Report and Recommendation and this
Court do not dismiss for failure to exhaust. Therefore, it does not affect the conclusion that the
remaining claims against Defendants Dulaney, or the other officers, were not properly exhausted.
E. Objection No. 5: Eighth Amendment Claim
The Plaintiff objects to the Report and Recommendation on the basis that it improperly
afforded greater weight to the Defendants’ affidavits. The Report and Recommendation found
that this claim failed on two separate grounds: first, because the Defendants’ affidavits indicate
that they lacked access to the TENS unit but took steps to obtain it; and second, because plaintiff
has failed to place any verifying medical information in the record to show the detrimental effect
of a delayed delivery. (Docket no. 43, Report at 18, PageID # 361.) The Plaintiff objects that
his complaint should have been treated as verified, a conclusion that the Court rejects for the
reasons listed above.1
Plaintiff does not appear to object to the other grounds supporting this conclusion. The
Report and Recommendation correctly notes that “[a]n inmate who complains that delay in
medical treatment rose to a constitutional violation must place verifying medical evidence in the
record to establish the detrimental effect of the delay in medical treatment to succeed.” Napier
v. Madison Cnty., Ky., 238 F.3d 739, 742 (6th Cir. 2001) (internal quotation marks omitted).
F. Objection No. 6: First Amendment Retaliation
Plaintiff argues that the Report and Recommendation’s ruling on his First Amendment
retaliation claims against Defendants Dulaney and Darnell was flawed based on Plaintiff’s
characterization of the July 1, 2013 administrative hearing. Plaintiff disagrees that his retaliation
claim was addressed at that hearing, stating that it was instead focused on separate misconduct:
namely, assault and battery, and whether he had displayed aggressive behavior towards an
officer, noting again that video footage demonstrated that he had not.
The Court finds that the misconduct was not separate, and accordingly agrees with the
Report and Recommendation’s analysis of the claim. The misconduct hearing report addresses
two charges, one for threatening behavior, and the other for assault and battery. Both charges
relate to the incident in the recreational yard. Plaintiff is correct that the hearing officer agreed
with the Plaintiff, and not the officers, that the in the exchange between Defendant Darnell and
Plaintiff, Plaintiff did not initially display aggressive behavior towards the officer. This was
corroborated by video tape. However, the hearing officer found that Plaintiff was insolent
toward Defendant, namely that he used abusive language that set the entire sequence of events
in motion. He also found that Plaintiff’s refusal to submit to cuffing, and a subsequent action
While there does appear to be a narrow exception under this rule for very obvious, extremely
serious circumstances, such as continual vomiting and other “classic signs of appendicitis,” see
Blackmore v. Kalamazoo Cnty., 390 F.3d 890, 900 (6th Cir. 2004), the Court notes that even in
Napier, the Sixth Circuit found that a failure to show medical evidence, in the context of missed
dialysis treatments and kidney failure, doomed an Eighth Amendment claim, see Napier, 238
F.3d at 743. Accordingly, even accepting as true Plaintiff’s allegation that he experienced very
serious back pain during this experience, the Court agrees with the Report and Recommendation
that the failure to produce medical evidence leaves the Eight Amendment claim unsupported.
where he “bent forward while simultaneously twisting to the right and away from the Reporting
Officer’s grasp,” constituted an assault and battery. (Docket no. 1-1, Report at 22, PageID # 52.)
G. Objection No. 7: Reviving the First Amendment Retaliation Claim
Plaintiff argues that because he was not found guilty of the misconduct addressed at the
July 1, 2013 hearing, the Report and Recommendation’s determination that he cannot revive his
retaliation claim is incorrect. Plaintiff is incorrect. He was in fact found guilty of two charges
of misconduct, despite the fact that the video tape did not corroborate some of the allegations of
the officer. (Docket no. 1-1, Report at 22, PageID # 52.)
H. Objection No. 8: State Claims
Plaintiff believes that his federal claim should survive, and on that basis objects to the
Report and Recommendation’s dealing with his state law claims. The Court agrees with the
Report and Recommendation as to the federal claims and the state law claims.
III. CERTIFICATE OF APPEALABILITY
Under the Antiterrorism and Effective Death Penalty Act, a plaintiff may not appeal in
a habeas corpus case unless a circuit justice or judge issues a certificate of appealability. 28
U.S.C. § 2253(c)(1). The Federal Rules of Appellate Procedure extend to district judges the
authority to issue certificates of appealability. FED. R. APP. P. 22(b); see also, Castro v. United
States, 310 F.3d 900, 901-02 (6th Cir. 2002) (the district judge “must issue or deny a [certificate
of appealability] if an applicant files a notice of appeal pursuant to the explicit requirements of
Federal Rule of Appellate Procedure 22(b)(1)”). However, a certificate of appealability may be
issued “only if the applicant has made a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2).
To obtain a certificate of appealability, Plaintiff must demonstrate that “reasonable jurists
would find the district court’s assessment of the constitutional claims debatable or wrong.”
Miller-El v. Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). While Plaintiff is not required to establish that “some jurists would grant the petition
for habeas corpus,” he “must prove ‘something more than an absence of frivolity’ or the
existence of mere ‘good faith.’” Id. (quoting Barefoot v. Estelle, 463 U.S. 880, 893 (1983)). In
this case, Plaintiff has not made a substantial showing of the denial of a constitutional right.
Therefore, he is not entitled to a certificate of appealability.
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (docket no. 43), is accepted; Defendants’ motion for summary judgment
(docket no. 24) is GRANTED; and the remaining state law claims against Defendants are
IT IS SO ORDERED.
September 4, 2015
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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