Jordan #376733 v. Capello et al

Filing 83

MEMORANDUM AND ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION 76 granting motion 55 , ; signed by Judge R. Allan Edgar (Judge R. Allan Edgar, cam)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MICHAEL D. JORDAN,
Plaintiff,
v.

Case No. 2:10-cv-12
HON. R. ALLAN EDGAR

GARY CAPELLO, et al.,
Defendants.
____________________________________/

MEMORANDUM AND ORDER
Plaintiff Michael D. Jordan, a Michigan state prisoner in the custody of the Michigan
Department of Corrections (MDOC), brings this federal civil rights action under 42 U.S.C. § 1983
seeking to recover damages and injunctive relief. He is imprisoned at the Marquette Branch Prison.
The plaintiff’s complaint names the following defendants: Warden Gary Capello, Deputy
Warden Linda Tribley, Resident Unit Officer Christopher Charles, Assistant Resident Unit
Supervisor Scott E. Dewar, and Resident Unit Officer Douglas Gill. The complaint alleges that
plaintiff Jordan was physically assaulted by defendants Charles and Gill in violation of the Eighth
Amendment to the United States Constitution which prohibits the infliction of cruel and unusual
punishment. Plaintiff Jordan further alleges that when he notified defendants Capello, Tribley and
Dewar about the assaults, they failed to take corrective action.
During initial screening the Court dismissed the plaintiff’s claims against defendants Capello,
Tribley and Dewar pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A and 42 U.S.C. § 1997e(c). The
Court ordered service of process of the complaint only on defendants Charles and Gill. [Court Doc.
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Nos. 5, 6]. After taking discovery including the deposition of plaintiff Jordan, defendants Charles
and Gill have made a second motion for summary judgment under Fed. R. Civ. P. 56 and qualified
immunity. [Court Doc. No. 55].
On September 12, 2012, Magistrate Judge Timothy P. Greeley submitted his report and
recommendation that the second motion for summary judgment and qualified immunity by
defendants Charles and Gill be granted, and that plaintiff Jordan’s entire complaint be dismissed
with prejudice. [Court Doc. No. 76].

Plaintiff Jordan filed objections to the report and

recommendation. [Court Doc. No. 80]. Plaintiff Jordan contends that there are issues of fact in
dispute which preclude the Court from granting summary judgment in favor of defendants Charles
and Gill under Fed. R. Civ. P. 56. Plaintiff Jordan argues that his remaining Eighth Amendment
claims against defendants Charles and Gill should survive the summary judgment motion and
proceed to trial.
After reviewing the entire record de novo, the Court concludes that the objections raised by
plaintiff Jordan are without merit. The objections of plaintiff Jordan [Court Doc. No. 80] are
DENIED. Based on the facts and admissible evidence in the record, the Court finds that there are
no genuine issues of material fact in dispute, and defendants Charles and Gill are entitled to have
summary judgment granted in their favor under Fed. R. Civ. P. 56. An objectively reasonable jury
could not find in plaintiff Jordan’s favor at a trial on his Eighth Amendment cruel and unusual
punishment claims against defendants Charles and Gill.
The Court ACCEPTS and ADOPTS the report and recommendation [Court Doc. No. 76]
pursuant to 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b), and W.D. Mich. LCivR 72.3(b). The
second motion for summary judgment and qualified immunity by defendants Charles and Gill [Court
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Doc. No. 55] is GRANTED. The complaint of plaintiff Jordan shall be dismissed with prejudice in
its entirety. All claims brought by plaintiff Jordan against all of the defendants shall be dismissed
with prejudice.
For the reasons expressed in the report and recommendation, the Court finds that any appeal
by plaintiff Jordan from the decision and judgment in this case would not be taken in good faith.
McGore v. Wrigglesworth, 114 F. 3d 601, 611 (6th Cir. 1997). Pursuant to 28 U.S.C. § 1915(a)(3)
and Fed. R. App. P. 24(a)(4)(B), this Court certifies that any appeal by plaintiff from the judgment
would not be taken in good faith.
In the event that plaintiff Jordan takes an appeal to the Sixth Circuit Court of Appeals, this
Court shall assess and require him to pay the $455.00 appellate filing fee pursuant to § 1915(b)(1),
McGore, 114 F.3d at 610-11, unless he is barred from proceeding in forma pauperis by the “three
strikes” rule in 28 U.S.C. 1915(g). If plaintiff Jordan is barred by the “three strikes” rule in 28
U.S.C. 1915(g), then he shall be required to pay the $455.00 appellate filing fee in one lump sum.
A separate judgment will be entered.
SO ORDERED
Dated: October 10, 2012.

/s/ R. Allan Edgar
R. ALLAN EDGAR
UNITED STATES DISTRICT JUDGE

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