Merriweather #209190 v. Artis et al

Filing 44

ORDER ADOPTING REPORT AND RECOMMENDATION 37 and denying 31 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

Case 1:22-cv-00305-PLM-PJG ECF No. 44, PageID.208 Filed 05/22/23 Page 1 of 2

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BASHARA MERRIWEATHER, #209190,
Plaintiff,
-vFREDEANE ARTIS AND UNKNOWN KING,
Defendants.

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No. 1:22-cv-305
Honorable Paul L. Maloney

ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff Merriweather, a prisoner under the control of the Michigan Department of
Corrections, alleges an Eighth Amendment claim against the Warden and Deputy Warden
at the Brooks Correctional Facility. Plaintiff filed a motion for summary judgment (ECF No.
31). The Magistrate Judge issued a report recommending this Court deny Plaintiff’s motion
(ECF No. 37). Plaintiff filed objections (ECF No. 38).
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).
Plaintiff’s claim arises from the MDOC’s response to the COVID-19 virus. Plaintiff
asserts that some prisoners in his housing unit tested positive for COVID-19, including the

Case 1:22-cv-00305-PLM-PJG ECF No. 44, PageID.209 Filed 05/22/23 Page 2 of 2

individual with whom he shared a cell. Plaintiff contends he has underlying health conditions
and that he requested to be separated from COVID-positive prisoners, a request Defendants
denied. The only evidence Plaintiff submitted with this motion is an affidavit in which
Plaintiff identifies prisoners who “were moved to C-Wing in B-Unit with the guys that tested
Negative for COVID-19, but were considered Close contact” (ECF No. 31-1 PageID.151).
The Magistrate Judge concludes Plaintiff has pled a claim for which relief may be
granted (R&R PageID.174 n.1). The Magistrate Judge recommends denying the motion
because Plaintiff failed to put forth any evidence to support one of the elements of his claim,
whether Defendants failed to respond reasonably to the risk Plaintiff faced.
Plaintiff objects. The Court overrules Plaintiff’s objections. The Court agrees with
the Magistrate Judge’s findings and recommendations. Plaintiff’s objections do not address
the reason the Magistrate Judge recommends denying the motion. Plaintiff has not pointed
to any evidence in the record that would support the missing element of his claim. Plaintiff’s
allegations are simply insufficient to meet his burden on summary judgment.

Accordingly, the Court ADOPTS the Report and Recommendation (ECF No. 37)
and DENIES Plaintiff’s motion for summary judgment (ECF No. 31).

IT IS SO

ORDERED.
Date:

May 22, 2023

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

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