Dunbar v. Heyns et al

Filing 127

ORDER ADOPTING REPORT AND RECOMMENDATION 120 ; DENYING 103 , DENYING 110 , DENYING 101 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JOSEPH GREGORY DUNBAR, #129278,
Plaintiff,

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-vBRADLEY ROZEN and ROBERT WOLDHUIS,
Defendants.

No. 1:18-cv-617
Honorable Paul L. Maloney

ORDER ADOPTING REPORT AND RECOMMENDATION and MODIFYING
REPORT AND RECOMMENDATION AS TO OBJECTION 7 (HABEAS CLAIM)
The magistrate judge issued a report recommending the Court deny three motions
filed by Plaintiff Joseph Dunbar. (ECF No. 120.) Dunbar filed objections. (ECF No. 123.)
For the reasons provided below, Dunbar's objections are overruled and the Court will adopt
the report and recommendation.
I.
The standards for considering objections to a report and recommendation are wellsettled. After being served with a report and recommendation (R&R) issued by a magistrate
judge, a party has fourteen days to file written objections to the proposed findings and
recommendations. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b)(2). A district court judge
reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C. '
636(b)(1); Fed. R. Civ. P. 72(b)(3). Only those objections that are specific are entitled to a
de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per
curiam).

"[A]n objection that does nothing more than state a disagreement with the

magistrate's suggested resolution, or simply summarizes what has been presented before, is

not an 'objection' as that term is used in the context of Federal Rule of Civil Procedure 72."

Brown v. City of Grand Rapids, Michigan, No. 16-2433, 2017 WL 4712064, at *2 (6th Cir.
June 16, 2017).
II.
Objection 1. Lack of Facts
Dunbar contends the report and recommendation lacks facts. This objection is
overruled. Rule 72, not Rule 52, governs the report and recommendation. Neither rule
specifies a particular format for a finding of fact or a proposed finding of fact. Neither rule
requires each and every finding of fact or proposed finding of fact be specifically numbered.
Through the discussion of each motion, the magistrate judge sets for the proposed findings
of fact for each recommendation.
Objection 2. Date of Screening
Dunbar contends the magistrate judge erred when stating that the petition was
screened on July 12, 2017. This objection is overruled. The magistrate judge correctly stated
that a screening occurred on July 12, 2017. Dunbar is correct that a screening also occurred
on May 6, 2015. Correction of any error does not alter any of the material facts or
recommendations relevant to this R&R.
Objections 3 and 4
Neither of these objections address a material fact set forth in the R&R. These two
objections merely recite some history of this lawsuit. At best, these objections identify issues
resolved in other orders that are not part of the report and recommendation. These
objections are overruled.

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Objection 5. Lack of Proper Support for Summary Judgment Motions
Dunbar argues Defendants have failed to support their motions for summary
judgment with properly sworn affidavits. This objection is overruled. This objection does
not address any proposed finding of fact, conclusion of law, or recommendation in the report
and recommendation.

The magistrate judge does not address any motion filed by

Defendants in this R&R.
Objection 6. Jury Trial
Dunbar asserts his right to a jury trial. This objection is overruled. The objection
does not address any proposed finding of fact or conclusion of law in the report and
recommendation. Dunbar has not explained how his right to a jury trial is implicated by the
recommended disposition of any of his motions resolved in this report and
recommendation. Furthermore, the right to a jury trial does not preclude dismissal of claims
through well-established pretrial procedures and motions.
Objection 7. § 2241 Habeas Petition
In resolving Dunbar's motion for rehearing, the magistrate judge explained why no
habeas claim was before the Court as part of this lawsuit. (R&R at 3 PageID.881.) Dunbar
objects, referring to a footnote in the order transferring this lawsuit from the Eastern District
to the Western District of Michigan. (ECF No. 85 Order of Transfer at 1 n.1 PageID.474).
Dunbar's objection is overruled. The magistrate judge correctly and accurately
described the status of Dunbar's habeas claim.
In addition, the R&R is MODIFIED to supplement the R&R with the following
discussion to clarify the status of any habeas claim in this lawsuit.

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After remand from the Sixth Circuit, Judge Denise Hood conducted a primary
screening of the complaint under 28 U.S.C. § 1915(e)(2). (ECF No. 47.) Judge Hood
addressed the viability of Dunbar's challenge to the length of his state court sentence as a §
1983 claim. (Id. at 4-5 PageID.343-44.) The civil rights challenge to the length of his
sentence was dismissed as barred by Heck v. Humphrey, 512 U.S. 477 (1994). (Id.) Finding
no other viable claims against Defendant DeWayne Burton, the warden of the facility where
Dunbar is incarcerated, Judge Hood dismissed the civil rights complaint against Defendant
Burton. (Id. at 9 PageID.348.) Defendant Burton has never been served with the summons
and complaint.
The United States Supreme Court has explained that "[f]ederal law opens two main
avenues to relief on complaints related to imprisonment: a petition for habeas corpus, 28
U.S.C. § 2254, and a complaint under the Civil Rights Act of 1987, Rev. Stat. § 1979, as
amended, 42 U.S.C. § 1983." Muhammad v. Close, 540 U.S. 749, 750 (2004) (per curiam).
Causes of action arising from the conditions and circumstances of confinement are brought
through claims under § 1983 and are subject to various procedures and consequences set
forth in the Prison Litigation Reform Act (PLRA). See id.; Moran v. Sondalle, 218 F.3d
647, 649 (7th Cir. 2000) (per curiam). Challenges to the validity and duration of a conviction
are brought through habeas applications and are subject to different procedures and
consequences set forth in the Antiterroism and Effective Death Penalty Act (AEDPA). See

Muhammad, 540 U.S. at 750; Moran, 218 F.3d at 649. Because the requirements for the
two types of lawsuits are different, the Seventh Circuit explained that it was "important to
classify [the] cases correctly." Moran, 218 F.3d at 649.

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The Seventh Circuit also noted that prisoners "may be tempted to choose one route
rather than another to avoid" the various procedures and consequences set forth in the two
statutes. Moran, 218 F.3d at 649. A "hybrid" action involving both types of claims "presents
significant problems and courts must be on guard for attempts to use § 1983" to avoid the
restrictions contained in the AEDPA. Spencer v. Barret, No. 14-10823, 2015 WL 4528052,
at *4 (E.D. Mich. July 27, 2015). Where prisoner have sought to bring a hybrid habeas and
civil rights claims, courts have directed the prisoners to file separate actions. See, e.g., Kirk

v. Jablonski, No. 18-cv-288, 2019 WL 1283009, at *1 (D.N.M. Mar. 20, 2019).
Since his lawsuit was filed, the courts have consistently treated Dunbar's lawsuit as a
civil rights lawsuit brought under § 1983. In her initial review of the lawsuit, Judge Hood
determined Dunbar filed a civil rights complaint under § 1983 and not an application for
habeas relief. Dunbar did not seek reconsideration of that conclusion. Judge Hood
dismissed Dunbar's civil rights challenge to the length of his sentence as barred by Heck v.

Humphrey. Dunbar did not seek reconsideration of that conclusion. Judge Hood did not
order the summons and complaint be served on Warden Burton, who would have been the
only proper defendant for a habeas claim. Dunbar did not seek reconsideration of that
conclusion. Magistrate Judge R. Steven Whalen granted Dunbar's application to proceed
without prepayment of the filing fee and allowed the $350 filing fee to be paid over time by
withdrawals from his prison trust fund. (ECF No. 46.) That amount is the filing fee for a
civil action, and not the filing fee for a habeas application, which is only five dollars. The
one exception to treating the lawsuit as a civil rights claim rather than habeas claim is the
footnote contained in the magistrate judge's order transferring the case from the Eastern

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District to the Western District. That comment is not binding and fails to note that all of the
claims brought against Defendant Burton had been dismissed.
As this case has been litigated, Dunbar has not presented a habeas application to
challenge the duration of his sentence. He does not have a pending habeas claim.
Objection 8
This objection does not address any finding of fact or conclusion of law set forth in
the R&R. Rather, Dunbar merely asserts that he has viable claims. This objection is
overruled.
III.
Having reviewed the objections de novo, the Court ADOPTS the Report and
Recommendation as the Opinion of this Court, with MODIFICATIONS to supplement the
discussion of Objection 7.
Dunbar's motion for a rehearing (ECF No. 101) is DENIED; his motion for default
judgment (ECF No. 103) is DENIED; and his motion for summary judgment (ECF No. 110)
is DENIED.
IT IS SO ORDERED.
Date: July 17, 2019

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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