Lee #791018 v. Tinerella et al

Filing 78

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 76 ; Defendants' Motion for Summary Judgment 56 is granted; the Court discerns no good faith basis for appeal ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
GREGORY LEE,
Plaintiff,
CASE No. 1:17-cv-797
v.
HON. ROBERT J. JONKER
ROBERT TINERELLA, et al.,
Defendants.
_______________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Green’s Report and Recommendation in this
matter (ECF No. 76) and Plaintiff’s Objections to the Report and Recommendation. (ECF No. 77).
Under the Federal Rules of Civil Procedure, where, as here, 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,
MILLER, & MARCUS, FEDERAL PRACTICE

AND

PROCEDURE § 3070.2, at 381 (2d ed. 1997).

Specifically, the Rules provide that:
[t]he district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.
The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.
FED R. CIV. P. 72(b)(3). 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 Plaintiff’s Objections. After its review, the Court finds
that Magistrate Judge Green’s Report and Recommendation, which recommends granting
Defendants’ Motion for Summary Judgment (ECF No. 56), is factually sound and legally correct.
Plaintiff raises three objections, as follows:
1. Plaintiff
properly
object[s]
to
the
Report
and
Recommendation[‘s] improper drawing of inferences and
weighing of the evidence.
2. Plaintiff objects to the portion of the Magistrate’s Report and
Recommendation that gives conclusions based on inaccurate
information and misstated facts.
3. Plaintiff objects to the portion of the Magistrate’s Report and
Recommendation that concludes the fact that he failed to
properly apply the law in regards to credibility determinations
and genuine issues of material fact preclude summary judgment.
(ECF No. 77).
All three Objections can be distilled down to a single, overriding argument. Namely, that
the Magistrate Judge weighed the evidence and credited the defendant’s version of events and
discounted Plaintiff’s version, in a manner contrary to well worn law relating to summary
judgment motions. It is true that “at the summary judgment stage the judge's function is not himself
to weigh the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). But for the
reasons that follow, the Court concludes no improper weighing or credibility determinations were
made by the Magistrate Judge.
In the main, Plaintiff contends that the Magistrate Judge was mistaken in finding that the
Complaint (ECF No. 1) and the brief Plaintiff filed later in the case do not satisfy the requirements
of 28 U.S.C. § 1746. The Court disagrees. The Magistrate Judge’s recommendation on this point
was correct. Under 28 U.S.C. § 1746, a person seeking to make an unsworn declaration must state
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“I declare (or certify, verify, or state) under penalty of perjury under the laws of the United States
of America that the foregoing is true and correct.” The Court agrees with the Magistrate Judge
that the Complaint (ECF No. 1) and Plaintiff’s “sworn” brief in opposition to the pending motion
for summary judgment (ECF No. 68) are not properly verified, for exactly reasons the Magistrate
Judge details. (Report and Recommendation, ECF No. 76, PageID.634-635). The “statement of
facts” contained in Plaintiff’s brief consists entirely of argument. As the Magistrate Judge
correctly detailed, legal conclusions even if asserted in a sworn pleading are not enough to create
a genuine issue of material fact for trial.
Most of the declarations Plaintiff submitted in support of the Complaint also do not meet
the statutory requirements. The first declaration from Prisoner Mims (ECF No. 1-1, PageID.30)
is diluted, stating “Pursuant to 28 USC § 1746, under the penalty of perjury, I Doyle Mims swear
that the following statement is true and correct to the best of my knowledge, belief, and
understanding.” (emphasis added). The second declaration from Prisoner Fulkerson begins by
stating “Such in Such hereby declares” and then concludes by stating “I declare under penalty of
perjury the foregoing is true + correct till the best of my knowledge.” (ECF No. 1-1, PageID.36).
It is diluted, then, for the same reason as Prisoner Mims. See Inman v. Riebe, No. 2:15-CV-0080JAW, 2016 WL 3102199, at *1 (D. Me. May 5, 2016), report and recommendation adopted, No.
2:15-CV-00080-JAW, 2016 WL 3129115 (D. Me. June 2, 2016) (“because Plaintiff asserts that
the information is ‘true to the best of my knowledge,’ Plaintiff’s assertions are qualified and,
therefore, the language is not substantially similar to the language authorized by section 1746.”).
The third declaration from Prisoner Workman contains no reference at all to penalty of perjury
(ECF No. 1-1, PageID.37), and thus does not meet the statutory requirements.

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The qualifying language or failure to reference the penalty of perjury undermines the
evidentiary value of the affidavit and removes it from the scope of 28 U.S.C. § 1746. Affidavits
must be based on personal knowledge, not information and belief, and may otherwise be
disregarded. FED. R. CIV. P. 56(c)(4). The same is true for declarations. Id.
The only declaration that references the penalty of perjury and does not contain qualifying
language is that of Prisoner Tooley. (ECF No. 1-1, PageID.38). The Magistrate Judge found that
it did not meet the statutory requirements, however, because it was not dated. The copy of the
declaration that has been submitted to the Court is not easily read. However, near the bottom of
the declaration, just before the prisoner’s signature it does appear that the phrase “executed at
Ionia, Mich. on 5.2.2016” can be read. (ECF No. 1-1, PageID.38). Accordingly, the Court
disagrees with the Magistrate Judge that the Declaration of Prisoner Tooley does not meet the
requirements of the statute.
The Court concludes however, that this does not affect the Magistrate’s recommendation
that Defendants are entitled to summary judgment. The Tooley declaration relates solely to the
second of two alleged assaults that are at issue in this case. Inmate Tooley states that he saw
Defendant Piggot assault Plaintiff by yanking his arm through the food slot while Corrections
Officer Rose tried to remove the keys. Inmate Tooley says Plaintiff was in great pain, and he
shouted “what are you doing? Are you trying to break my arm?” A few minutes later, Inmate
Tooley saw Sergeant Perez standing in front of Plaintiff’s cell and taking pictures of Plaintiff’s
Lee’s arm. (ECF No. 1-1, PageID.38). For the most part, the declaration is consistent with the
facts as laid out in the Magistrate Judge’s discussion and which the Magistrate Judge accepted as
true for purposes of evaluating the summary judgment motion. (ECF No. 76, PageID.637-638).
To the extent there is any difference, the Magistrate Judge was entirely correct when he noted that

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even if Plaintiff had presented evidence that he was not resisting (of which Prisoner Tooley’s
declaration is entirely silent), Plaintiff would face the preclusive effect of the findings from the
misconduct hearings. (ECF No. 76, PageID.638 n.3)
At bottom, the Magistrate Judge did not improperly weigh the evidence. Rather he
correctly applied the law with respect for evaluating sworn statements and then, based on the
evidence of record (including a consideration of Plaintiff’s deposition testimony), determined that
no genuine dispute of any material fact remained, and that the defendants were entitled to judgment
as a matter of law. Plaintiff had ample opportunity to rebut the evidence Defendants adduced in
support of their motion for summary judgment and could have, but did not, submit further
declarations complying with the statute.
CONCLUSION
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (ECF No. 76) is approved and adopted as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (ECF No.
56) is GRANTED.
The Court discerns no good-faith basis for appeal of this matter.

See McGore v.

Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997); 28 U.S.C. § 1915(a)(3).
This case is DISMISSED.

Dated:

August 26, 2019

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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