Jennings #711938 v. Washington et al
ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 53 ; Defendant Showers' motion for summary judgment 41 is DENIED; Plaintiff's motion for a jury trial 57 is GRANTED; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
MARK COLIN JENNINGS, II,
Case No. 1:16-cv-483
HON. JANET T. NEFF
HEIDI E. WASHINGTON, et al.,
OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. Defendant Showers
filed a motion for summary judgment on Plaintiff’s Eighth Amendment failure-to-protect claim
against him. The matter was referred to the Magistrate Judge, who issued a Report and
Recommendation (R&R), recommending that this Court deny the motion. The matter is presently
before the Court on Defendant’s objections to the Report and Recommendation (ECF No. 55).
Plaintiff filed a response to the objections, concurring with the Report and Recommendation and
moving for a jury trial on all facts that are in dispute (ECF No. 57). 1 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.
The Magistrate Judge determined that Defendant Showers was not entitled to summary
judgment on Plaintiff’s Eighth Amendment failure-to-protect claim because (1) Defendant’s
Defendant also previously requested a jury trial (ECF No. 20 at PageID.76).
argument is not supported by admissible evidence, and (2) Plaintiff’s evidentiary submissions
create genuine factual disputes as to these matters (R&R, ECF No. 53 at PageID.438).
Defendant objects to the first basis for the Magistrate Judge’s recommendation, arguing
that his clerical error in omitting the words “under oath” from his interrogatory answers should not
exclude this Court from considering his answers in its decision (Objs., ECF No. 55 at PageID.445).
Defendant’s argument fails to support a different result. As the Magistrate Judge pointed out, even
if Defendant’s interrogatory answers did not include this deficiency, “the result would be the same
as Plaintiff has presented evidence directly contradicting Defendant’s assertions, thereby creating
a genuine factual dispute regarding the essential elements of Plaintiff’s claim” (R&R, ECF No. 53
at PageID.439). Defendant’s objection is therefore denied.
Defendant also objects to the second basis for the Magistrate Judge’s recommendation,
arguing that Defendant is entitled to summary judgment because he “acted reasonably and, in an
abundance of caution, asked Jennings if he wanted protection” (Objs., ECF No. 55 at PageID.447).
Again, Defendant’s argument fails to support a different result. The Magistrate Judge specifically
considered Defendant’s assertion that he “offered to place Plaintiff in protective custody which
Plaintiff refused” (R&R, ECF No. 53 at PageID.438, citing Def. Br., ECF No. 42 at PageID.252).
However, the Magistrate Judge determined that Defendant failed to meet his burden to demonstrate
the lack of a genuine factual dispute necessitating a trial on the merits in light of the contrary
allegations in Plaintiff’s affidavit as well as Plaintiff’s deposition testimony that he did not refuse
an offer of protection from Defendant (R&R, ECF No. 53 at PageID.439, citing Pl. Aff., ECF No.
50-1 at PageID.417-418, and Pl. Dep., ECF No. 42-2 at PageID.259).
disagreement with the result fails to demonstrate any factual or legal error by the Magistrate Judge.
Accordingly, this Court adopts the Magistrate Judge’s Report and Recommendation as the
Opinion of this Court.
IT IS HEREBY ORDERED that the Objections (ECF No. 55) are DENIED and the
Report and Recommendation of the Magistrate Judge (ECF No. 53) is APPROVED and
ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendant Showers’ Motion for Summary Judgment
(ECF No. 41) is DENIED for the reasons stated in the Report and Recommendation.
IT IS FURTHER ORDERED that Plaintiff’s Motion for a Jury Trial (ECF No. 57) is
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
Dated: June 27, 2017
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