Jones #527449 v. Berrien County Jail et al

Filing 58

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 47 ; Defendants' Motion for Summary Judgment 19 is GRANTED; Defendant Orrison's Motion for Summary Judgment 23 is GRANTED; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CEDRIC JONES,
Plaintiff,
Case No. 1:15-cv-1323
v.
HON. JANET T. NEFF
BERRIEN COUNTY JAIL, et al.,
Defendants.

____________________________/
OPINION AND ORDER
This is a prisoner civil rights action involving Plaintiff’s Eighth Amendment claims under
42 U.S.C. § 1983 and his claim under the Americans with Disabilities Act (ADA), 42 U.S.C.
§ 12101 et seq. Pending before the Court is Plaintiff’s objections (ECF No. 55) to the Magistrate
Judge’s Report and Recommendation (R&R, ECF No. 47), recommending that Defendants’
motions for summary judgment be granted and this matter terminated. 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 and issues this Opinion and Order.
I. Background
On September 8, 2016, Defendants moved for summary judgment of the claims pending
against them (Motions, ECF Nos. 19 & 23). Three months later, on December 9, 2016, Plaintiff
filed a Motion to Amend Complaint (ECF No. 31), with a proposed amended complaint and
associated exhibits (ECF No. 32). Defendants filed responses in opposition to Plaintiff’s Motion

to Amend Complaint (ECF Nos. 33-34 & 36), to which Plaintiff filed a reply with supporting brief
(ECF Nos. 41 & 42). The Magistrate Judge denied Plaintiff’s Motion to Amend Complaint,
determining that “Plaintiff’s attempt to amend his complaint at this juncture demonstrates bad faith
and an attempt to forestall resolution of Defendants’ motions for summary judgment” (Order, ECF
No. 50 at PageID.490).
On January 9, 2017, Plaintiff filed a response and brief in opposition to both summary
judgment motions (ECF Nos. 39 & 40). On January 19, 2017, Plaintiff filed exhibits A through I
as “catch up materials” in support of his brief in opposition (ECF No. 43). On January 23, 2017,
Defendants filed their respective replies (ECF Nos. 44 & 46).
On January 26, 2017, the Magistrate Judge issued a Report and Recommendation (R&R,
ECF No. 47), recommending that both summary judgment motions be granted and this matter
terminated. Plaintiff subsequently filed his own affidavit (ECF Nos. 48 [unsigned] & 49 [signed])
and objections to the Report and Recommendation (ECF No. 55). Defendant Orrison filed a
response to Plaintiff’s objections (ECF No. 57).
II. Eighth Amendment Claims
A. Catheters
With regard to Plaintiff’s Eighth Amendment claim that Defendants refused his requests
for catheters, the Magistrate Judge examined Defendants’ evidence that Plaintiff was provided
with catheters, noted Plaintiff’s lack of evidence to the contrary, and concluded that “[t]he evidence
reveals that Defendants were not deliberately indifferent to Plaintiff’s medical needs” (R&R, ECF
No. 47 at PageID.465).
In his objection, Plaintiff argues that the Magistrate Judge “totally ignored the evidentiary
proofs plaintiff submitted” (Pl. Obj., ECF No. 55 at PageID.502-504). Specifically, Plaintiff

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references “the evidentiary proofs plaintiff submitted with his motion and brief in opposition to
defendants’ motion for summary judgment” (id. at PageID.503-504), apparently his later filed
“Exhibits A to I” (ECF No. 43). Plaintiff opines that while his “Affidavit was filed after the
Magistrate’s ruling, the Exhibits are sufficient to demonstrate a genuine issue of material fact in
dispute” (id. at PageID.504). Plaintiff identifies exhibits D, E and I as supporting his argument
(id. at PageID.503-504). 1
Plaintiff’s Exhibit D is an April 2, 2015 “Inmate Activity” note indicating (1) that Plaintiff
stated during booking that he “uses a catheter,” and (2) that “catheters delivered by family @ 1400
hours” (Pl.’s Ex. D, ECF No. 43 at PageID.410). Exhibit E is an affidavit of Jackey Jones,
Plaintiff’s brother, attesting that he supplied Plaintiff with catheters from April to August 2015
“due to Berrien County Jail failing to supply plaintiff with such” (Pl.’s Ex. E, ECF No. 43 at
PageID.412). Exhibit I is an Inmate Purchase Record, delineating purchases of soap, a legal pad,
a washcloth, deodorant, a comb and various snacks (Pl.’s Ex. I, ECF No. 43 at PageID.447).
Plaintiff’s argument that “[t]his evidence indicates that Defendant Orrison was deliberately
indifferent to plaintiff’s serious medical needs” (ECF No. 55 at PageID.504) lacks merit. As
Defendant Orrison points out in response to Plaintiff’s objections, Exhibits D, E and I do not
reference Orrison (ECF No. 57 at PageID.514-515). Further, these exhibits fail to respond to
Defendant Orrison’s specific argument in support of summary judgment that she did not receive,
respond to, or approve prisoner requests to catheter or catheter supplies (id. at PageID.516). Last,

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To the extent Plaintiff relies on any evidence he submitted outside of the parties’ summary
judgment motion practice, his reliance is misplaced, for the reasons Defendant Orrison points out
in response to Plaintiff’s objections (ECF No. 57 at PageID.514-515, citing Street v. JC Bradford
& Co., 886 F.2d 1472, 1478 (6th Cir. 1989) (holding that if, after being afforded sufficient time
for discovery, the respondent did not “put up” supporting evidence, then summary judgment is
properly granted); Cox v. Ky. Dep’t of Transp., 53 F.3d 146, 149 (6th Cir. 1995) (same)).
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Plaintiff does not dispute Defendants’ evidence that he was, in fact, provided catheters. Plaintiff’s
argument fails to demonstrate any factual or legal error in the Magistrate Judge’s analysis or
conclusion that Defendants are entitled to summary judgment of his Eighth Amendment catheter
claim. A plaintiff cannot simply “replace conclusory allegations of the complaint . . . with
conclusory allegations of an affidavit.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990).
“Conclusory allegations, speculation, and unsubstantiated assertions are not evidence, and, are not
enough to defeat a well-supported motion for summary judgment.” Ferrari v. Ford Motor Co.,
826 F.3d 885, 897-98 (6th Cir. 2016) (quoting Pearce v. Faurecia Exhaust Sys., Inc., 529 F. App’x
454,458 (6th Cir. 2013)).
B. Bedding
Plaintiff’s objections do not address the Magistrate Judge’s analysis or conclusion
regarding his Eighth Amendment bedding claim.
C. Diet
With regard to Plaintiff’s Eighth Amendment claim that Defendants provided him foods to
which he was allergic, the Magistrate Judge examined the record and determined that “Plaintiff
has failed to present any evidence that would entitle him to prevail on this claim whereas
Defendants have presented evidence that refutes Plaintiff’s allegations” (R&R, ECF No. 47 at
PageID.466-467).
In his objection, Plaintiff argues that “contrary to the R&R, plaintiff clearly has presented
Exhibits showing that due to his food allergies, he routinely refused his meals but purchased all
manner of snack foods to barter with jail trustees various fruit items on a daily basis” (ECF No. 55
at PageID.505). Plaintiff further argues that his “Exhibits show that due to an adverse allergic
reaction, he was hospitalize[d] for a period of time” (id.).

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However, Plaintiff does not identify or describe the “Exhibits” upon which he relies for
this objection to the Report and Recommendation. Local Rule 72.3(b) requires an objecting party
to “specifically identify the portions of the proposed findings, recommendations or report to which
objections are made and the basis for such objections.” W.D. Mich. LCivR 72.3(b) (emphasis
added). Plaintiff’s argument does not serve to point the Court to any issues of material fact that
would preclude summary judgment on his Eighth Amendment diet claim. Accordingly, Plaintiff
has failed to demonstrate any factual or legal error in the Magistrate Judge’s analysis or conclusion.
This objection is properly denied.
D. Showering
With regard to Plaintiff’s Eighth Amendment claim that Defendants did not provide him
adequate opportunities to shower because the Berrien County Jail is not handicap accessible, the
Magistrate Judge examined the record and determined that Defendants submitted evidence that
Plaintiff “routinely refused offers to take a shower” and Plaintiff “presented no evidence in support
in support of this particular claim” (R&R, ECF No. 47 at PageID.467).
In his objection, Plaintiff asserts that his “Exhibits clearly demonstrate a pervasive and
prevailing pattern and practice of refusing to use non-accessible showers and restroom facilities at
the Berrin [sic] County Jail” (ECF No. 55 at PageID.505).
Again, Plaintiff does not identify or describe the “Exhibits” upon which he relies for his
objection. The Court further observes that Plaintiff’s mere assertion that he had a practice of
refusing offers to shower does not reveal any factual or legal error in the Magistrate Judge’s Eighth
Amendment analysis or conclusion on this claim. In short, this objection is properly denied.

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E. Eye Injury
With regard to Plaintiff’s claim that Defendants’ actions or inactions caused an April 23,
2015 fall and eye injury, the Magistrate Judge examined Defendants’ evidence that Plaintiff
experiences a progressive eye disorder, noted Plaintiff’s failure to present any evidence in support
of his allegations, and concluded that Defendants were entitled to summary judgment on this claim
(R&R, ECF No. 47 at PageID.467-468).
In his objection, Plaintiff argues that “[w]ith common sense logic, based on plaintiff’s
evidence that the defendants’ existing restrooms/bathing facilities were completely inaccessible to
wheelchair dependent qualified individuals, but not for that alone, plaintiff would not have fallen
from his wheelchair sustaining an eye injury” (ECF No. 55 at PageID.507).
Plaintiff does not identify or describe the “evidence” upon which he relies for his objection.
Further, Plaintiff does not address Defendants’ evidence that his eye injury was not the result of
his fall on April 23, 2015 but a progressive eye disorder. Plaintiff’s argument fails to demonstrate
any factual or legal error in the Magistrate Judge’s analysis or conclusion that Defendants are
entitled to summary judgment on his Eighth Amendment eye injury claim. This objection is
therefore properly denied.
F. General Medical Treatment
Plaintiff’s objections do not address the Magistrate Judge’s analysis or conclusion
regarding his Eighth Amendment general medical treatment claim.
III. ADA Claim
The Magistrate Judge recommends that Defendants are entitled to summary judgment on
Plaintiff’s ADA claim because “the evidence reveals that Defendants provided Plaintiff with
medical care and attempted to accommodate his needs” and Plaintiff “failed to present any

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evidence that Defendants intentionally discriminated against because of his disability” (R&R, ECF
No. 47 at PageID.469).
In his objection, Plaintiff asserts that his “exhibit evidence … cries aloud … for federal
adjudication” (ECF No. 55 at PageID.507). However, Plaintiff does not identify or describe the
“exhibit evidence” upon which he relies for his objection. Consequently, Plaintiff has failed to
specifically identify the basis for his objection as required by W.D. Mich. LCivR 72.3(b), and
concomitantly failed to demonstrate any factual or legal error in the Magistrate Judge’s analysis
or conclusion that Defendants are entitled to summary judgment on his ADA claim.
IV. Conclusion
Accordingly, this Court adopts the Magistrate Judge’s Report and Recommendation as the
Opinion of this Court. A Judgment will be entered consistent with this Opinion and Order. See
FED. R. CIV. P. 58. Because this action was filed in forma pauperis, this Court certifies, pursuant
to 28 U.S.C. § 1915(a)(3), that an appeal of this decision 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 the Objections (ECF No. 55) are DENIED and the
Report and Recommendation of the Magistrate Judge (ECF No. 47) is APPROVED and
ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (ECF No.
19) is GRANTED.
IT IS FURTHER ORDERED that Defendant Orrison’s Motion for Summary Judgment
(ECF No. 23) is GRANTED.

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IT IS FURTHER ORDERED that this Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that an appeal of this decision would not be taken in good faith.

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

Dated: June 13, 2017

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