Davis #368425 v. Gallagher et al
OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 13 ; Defendant's motion for summary judgment 9 is DENIED AS MOOT as to Plaintiff's retaliation and substantive due process claims, and DENIED as to Plaintiff's malicious prosecution claim; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
Case No. 1:16-cv-1405
HON. JANET T. NEFF
OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. Defendant filed a
motion for summary judgment, arguing that Plaintiff failed to exhaust administrative remedies
(ECF No. 9). The matter was referred to the Magistrate Judge, who issued a Report and
Recommendation (R&R) recommending that Plaintiff’s retaliation and substantive due process
claims be dismissed for failure to state a claim; Defendant’s motion to dismiss Plaintiff’s
retaliation and substantive due process claims, on exhaustion grounds, be denied as moot; and
Defendant’s motion to dismiss Plaintiff’s malicious prosecution claim be denied (ECF No. 13).
The matter is presently before the Court on the parties’ objections to the Report and
Recommendation (ECF Nos. 14 and 15). 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.
Plaintiff objects to the Report and Recommendation, arguing that the Magistrate Judge
erred in recommending his substantive due process and retaliation claims be dismissed (Pl. Obj.,
ECF No. 14 at PageID.113; R&R, ECF No. 13 at PageID.107-108). Plaintiff’s objection is
Plaintiff first objects to the Magistrate Judge’s recommendation on procedural due process
grounds, claiming the Magistrate Judge does not have the authority to review claims after an initial
PLRA screening has been conducted (ECF No. 14 at PageID.113). Plaintiff further claims that he
has not had the “opportunity to be heard on the issue[s]” of dismissing the substantive due process
and retaliation claims (id.).
While the Court allowed service of Plaintiff’s claims following an initial screening of his
Complaint (Op. & Order, ECF Nos. 5 & 6), Plaintiff cites no authority precluding a magistrate
judge from subsequently recommending dismissal of the same claims. Rather, this district’s Local
Rule 72.2(b) permits a magistrate judge assigned to a prisoner civil rights case to “enter such orders
and conduct such proceedings in that case as are authorized by statute or rule,” W.D. Mich. LCivR.
72.2(b), and, as noted by the Magistrate Judge (ECF No. 13 at PageID.105), the PLRA imposes a
mandatory duty to review and dismiss any prisoner claim that fails to state a claim upon which
relief may be granted. Additionally, the 14-day period in which to file objections to a report and
recommendation constitutes an opportunity to be heard.
See W.D. Mich. LCivR 72.3(b).
Therefore, Plaintiff’s procedural objection to the Magistrate Judge’s dismissal recommendation
Next, as to the merits of the Magistrate Judge’s recommendation to dismiss his substantive
due process claim, Plaintiff argues that the Magistrate Judge cited no authority for the
recommendation and failed to consider the decision in Cale v. Johnson, 861 F.2d 943 (6th Cir.
1988) (ECF No. 14 at PageID.113). However, the Magistrate Judge cited several authorities,
thoroughly summarizing the standard set forth in Albright v. Oliver, 510 U.S. 266 (1994), and
specifically relying on Darrah v. City of Oak Park, 255 F.3d 301 (6th Cir. 2001), for the conclusion
that a claim for malicious prosecution must be brought pursuant to the Fourth Amendment, not the
Fourteenth Amendment’s substantive due process clause (ECF No. 13 at PageID.105-107).
Plaintiff identifies no proposition in Cale that contradicts or undermines the Magistrate Judge’s
conclusion. In short, Plaintiff’s argument fails to demonstrate any error in the Magistrate Judge’s
analysis of his substantive due process claim.
Plaintiff does not likewise address the merits of the Magistrate Judge’s recommendation to
dismiss his retaliation claim. Rather, Plaintiff requests additional time to “respond” to the
Magistrate Judge’s recommendation that the retaliation claim also be dismissed (ECF No. 14 at
PageID.114). As noted supra, the opportunity to file objections to a magistrate judge’s report and
recommendation is a party’s opportunity to respond. See W.D. Mich. LCivR 72.3(b). In the event
that Plaintiff needed additional time to develop his argument on the retaliation claim, Plaintiff
could have moved for an extension of the deadline to file objections. See id. Alternatively,
Plaintiff could have moved for leave to supplement his objections. See W.D. Mich. LCivR 5.6(f).
Instead, in the six months since the Magistrate Judge filed the Report and Recommendation,
Plaintiff has filed no submission, and the Court determines that Plaintiff’s undeveloped request
contained herein warrants no additional delay in this case.
Defendant also objects to the Magistrate Judge’s Report and Recommendation. Defendant
argues that the Magistrate Judge erred in recommending this Court deny his motion to dismiss
Plaintiff’s malicious prosecution claim (Def. Obj., ECF No. 15 at PageID.115). Specifically,
Defendant argues that Plaintiff’s failure in a later filed grievance to “indicate that [the] previously
filed grievance on this issues [sic] had gone unanswered” demonstrates that “the grievance process
was available and accessible to Plaintiff at all times” (id. at PageID.117). Defendant’s argument
does not reveal error in the Magistrate Judge’s conclusion that he has not met his burden of
establishing the affirmative defense of failure to exhaust administrative remedies. Therefore, this
objection is denied.
Accordingly, this Court approves and adopts the Magistrate Judge’s Report and
Recommendation as the Opinion of this Court. Therefore:
IT IS HEREBY ORDERED that the Objections (ECF Nos. 14 and 15) are DENIED and
the Report and Recommendation of the Magistrate Judge (ECF No. 13) is APPROVED and
ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s retaliation and substantive due process
claims are DISMISSED WITH PREJUDICE for failure to state a claim upon which relief may be
granted pursuant to 28 U.S.C. § 1915A and 42 U.S.C. § 1997e(c).
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (ECF No.
9) is DENIED AS MOOT as to Plaintiff’s retaliation and substantive due process claims, and
DENIED as to Plaintiff’s malicious prosecution claim.
/s/ Janet T. Neff
Dated: November 30, 2017
JANET T. NEFF
United States District Judge
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