Haag #667757 v. Washington et al
Filing
70
OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 60 ; Defendant Burke's motion for summary judgment 50 is GRANTED; Defendant Kerstein's motion for summary judgment 54 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
BRIAN HAAG,
Plaintiff,
Case No. 1:17-cv-311
v.
HON. JANET T. NEFF
HEIDI WASHINGTON, et al.,
Defendants.
____________________________/
OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983 involving Plaintiff’s
claims that Defendant Corizon Health Services and seven individual Defendants violated his
Eighth Amendment right to be free from cruel and unusual punishment by not adequately treating
his restless leg syndrome (RLS) (ECF No. 1). This Court dismissed Corizon Health Services and
four of the individual Defendants for Plaintiff’s failure to state a claim against them (Orders, ECF
Nos. 5 & 30). Plaintiff subsequently amended his complaint to remove a defendant and to add
American with Disabilities Act (ADA) and gross negligence claims against remaining Defendants
Burke and Kerstein (ECF No. 46). On January 31, 2018, Defendant Burke moved for summary
judgment (ECF No. 50). On February 6, 2018, Defendant Kerstein moved for summary judgment
(ECF No. 54). The matter was referred to the Magistrate Judge, who issued a Report and
Recommendation (R&R) on May 16, 2018, recommending that Defendants’ motions be granted
and this action terminated. The matter is presently before the Court on Plaintiff’s objections to the
Report and Recommendation, to which Defendants filed a response. 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 first argues that the Magistrate Judge erred by indicating that Plaintiff “failed to
respond” to Defendants’ motions for summary judgment (Pl. Obj., ECF No. 63 at PageID.536;
R&R, ECF No. 60 at PageID.485). However, Plaintiff’s argument reveals no inaccurate statement
by the Magistrate Judge. Plaintiff did not timely file any response within the 28-day period set
forth in the Case Management Order in this case (CMO, ECF No. 11 at PageID.49). See also W.D.
Mich. LCivR 7.2(c) (setting forth a 28-day response period for dispositive motions). And Plaintiff
had not yet filed any response to the motions at the time the Magistrate Judge issued the Report
and Recommendation. Indeed, Plaintiff filed his untimely response on June 4, 2018, i.e., the same
day on which he filed his objection to the Report and Recommendation resolving Defendants’
motions, and several months after Defendants’ motions were served on him. Plaintiff’s objection
is without merit and is properly denied.
Second, Plaintiff argues that the Magistrate Judge erred by “improperly accepting the
Defendant’s version of the facts” (Pl. Obj., ECF No. 63 at PageID.536). This argument is also
without merit. Because Plaintiff failed to timely file a response to Defendants’ motions, the
Magistrate Judge accurately indicated that no “evidence contradicting or otherwise calling into
question the evidence submitted by the Defendants” was available for the Report and
Recommendation (R&R, ECF No. 60 at PageID.484). The remainder of Plaintiff’s objection is
comprised of his description of the medical record and his assessment of his treatment, but neither
serves to demonstrate any factual or legal error in the Magistrate Judge’s conclusion, which was
predicated on the well-established proposition that allegations of inadequate medical care do not
2
state a claim under either the Eighth Amendment or the ADA (R&R, ECF No. 60 at PageID.489490). 1
Accordingly, this Court adopts the Magistrate Judge’s Report and Recommendation as the
Opinion of this Court. All claims having now been resolved, the Court will also enter a Judgment
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 the
Judgment 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. 63) are DENIED and the
Report and Recommendation of the Magistrate Judge (ECF No. 60) is APPROVED and
ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendant Burke’s Motion for Summary Judgment
(ECF No. 50) is GRANTED.
IT IS FURTHER ORDERED that Defendant Kerstein’s Motion for Summary Judgment
(ECF No. 54) is GRANTED.
IT IS FURTHER ORDERED that this Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that an appeal of the Judgment would not be taken in good faith.
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
Dated: September 5, 2018
1
Likewise, Plaintiff’s response to Defendants’ motions, even if properly considered at this late
date, does not compel a different conclusion because the response merely sets forth Plaintiff’s
disagreement with the medical treatment he received (ECF No. 62 at PageID.499-501).
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