Sutherlin #271305 v. Derusha et al

Filing 143

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 137 , granting defendants' motions for summary judgment 80 , 34 , denying as moot plaintiff's objections to defendants' response to plaintiff's discovery requests, and plaintiff's motion for discovery 138 , 139 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

DAVID SUTHERLIN #271305,
Plaintiff,
File No. 2:10-CV-240
v.
HON. ROBERT HOLMES BELL
UNKNOWN DERUSHA, et al.,
Defendants.
/
ORDER APPROVING AND ADOPTING
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On February 24, 2012, United States Magistrate Judge Timothy P. Greeley issued a
report and recommendation (“R&R”) recommending that Defendants’ motions for summary
judgment (Dkt. Nos. 34, 80) be granted and that this case be dismissed in its entirety. (Dkt.
No. 137, R&R.) On March 8, 2012, Plaintiff filed objections to the R&R. (Dkt. No. 141.)
This Court is required to make a de novo determination of those portions of the R&R
to which specific objection has been made, and may accept, reject, or modify any or all of
the Magistrate Judge’s findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b). “[A] general objection to a magistrate’s report, which fails to specify the issues of

contention, does not satisfy the requirement that an objection be filed. The objections must
be clear enough to enable the district court to discern those issues that are dispositive and
contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).

Plaintiff filed a verified complaint in this action, and he has filed numerous affidavits
in support of his claim that he was drugged and sodomized by the ten Corrections Officer
Defendants on three dates in 2007 and 2008. (See, e.g., Dkt. Nos. 1, 4, 5, 6, 9, 95.) The
Magistrate Judge nevertheless recommends that summary judgment be entered in favor of
Defendants because Plaintiff did not come forward with sufficient evidence to create an issue
of fact for trial on his claim that Defendants drugged and sodomized him. On de novo
review, this Court agrees with the Magistrate Judge’s recommendation.
Plaintiff has made numerous nearly identical allegations against corrections officers
at every prison in which he has been housed (at least six) over a nine-year period.1 His
allegations have been investigated, but Plaintiff’s allegations are not supported by any
medical records or other evidence. Plaintiff has failed to cooperate with the preservation and
collection of evidence concerning these alleged assaults. The various psychologists that have
examined Plaintiff about his allegations have concluded that Plaintiff is paranoid, delusional,
and/or manipulative. In response, Plaintiff has come forward with nothing more than his
same self-serving, conclusory, repetitive and unsupported affidavits. Plaintiff has not
produced any evidence corroborating his fantastic claims. In light of this record, the Court
agrees with the Magistrate Judge that Plaintiff’s affidavits are not sufficient to create a
genuine issue of material fact sufficient to survive Defendants’ summary judgment motions.

1

See Plaintiff’s Feb. 2, 2012, Affidavit, with letter to Congressman John Conyers,
Jr., complaining that Plaintiff had been repeatedly raped by corrections officers since
1999. (Dkt. No. 132.)
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Plaintiff’s 35-pages of objections to the R&R dispute virtually every statement in the
R&R. Many of Plaintiff’s objections are directed to statements made by Defendants or to
statements contained in the psychological reports. Plaintiff is not accusing the Magistrate
Judge of misrepresenting the record.
Plaintiff objects to being characterized as delusional, paranoid, malingering, or
lacking in insight. Plaintiff asserts that he is not crazy or delusional, but mentally retarded.
In light of his mental retardation, Plaintiff objects to the Magistrate Judge’s failure to appoint
counsel.
The Magistrate Judge did not characterize Plaintiff’s mental condition.

The

Magistrate Judge simply recited the findings of the many mental health professionals who
have examined Plaintiff. The Magistrate Judge did not err in his characterization of the
evidence. Moreover, Plaintiff has provided no evidence other than his own affidavits in
support of his contention that he is mentally retarded. (See, e.g., Dkt. Nos. 95, 105.) The
Court finds that there are no exceptional circumstances warranting the appointment of
counsel. See Lavado v. Keohane, 992 F.2d 601, 606 (6th Cir. 1993).
Plaintiff objects to the Magistrate Judge’s failure to mention Plaintiff’s nine affidavits
from four eye witnesses. The Magistrate Judge correctly focused his analysis on the issue
of whether there was any factual support for Plaintiff’s claim that he was drugged and
sodomized by Defendants. The affidavits that are attached to Plaintiff’s amended complaint

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are not evidence that Plaintiff was drugged and sodomized. The affidavits mention “sexual
harassment,” but the only conduct referenced in the affidavits consists of sexual verbal
harassment, verbal threats, the filing of fabricated misconduct tickets, and the falsification
of documentation on grievances. (Dkt. No. 15, Ex. 2.) Nothing in these affidavits supports
Plaintiff’s claim that he was drugged and sodomized by Defendants.
Plaintiff objects to Defendants’ failure to provide him with their bodily fluids and hair
for DNA analysis. Plaintiff’s objection lacks merit because there is no evidence in the record
to compare any DNA results against. Although Plaintiff faults the Magistrate Judge for
failing to order the United States Marshal’s Service to retrieve supporting DNA evidence
that is in the custody of a third-party, the burden is on Plaintiff, not the Court, to come
forward with the evidence necessary to support his claim.
Plaintiff’s objections as a whole are not well-taken. Plaintiff has not identified any
errors in the R&R, nor has he identified any evidence that would be sufficient to create an
issue of fact for trial.
After the R&R was issued, Plaintiff filed objections to Defendants’ response to
Plaintiff’s discovery requests, and a motion for discovery. (Dkt. Nos. 138, 139.) Plaintiff’s
post-R&R filings are not only untimely, but Plaintiff has also failed to identify any facts he
reasonably anticipates obtaining through discovery that would have been essential to his
opposition to the motions for summary judgment. See Fed. R. Civ. P. 56(d). Plaintiff’s
objections and discovery request will accordingly be denied.

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Accordingly,

IT IS HEREBY ORDERED that Plaintiff’s objections to the R&R (Dkt. No. 141)
are OVERRULED.
IT IS FURTHER ORDERED the February 24, 2012, R&R (Dkt. No. 137) is
APPROVED and ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ motions for summary judgment (Dkt.
Nos. 34, 80) are GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s objections to Defendants’ response
to Plaintiff’s discovery requests, and Plaintiff’s motion for discovery (Dkt. Nos. 138, 139)
are DENIED AS MOOT.
IT IS FURTHER CERTIFIED pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App.
P. 24(a)(3) that an appeal of this action would not be in good faith.

Dated: March 16, 2012

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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