Churn #165703 v. Rutter, et al

Filing 164

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 153 , and granting Defendants' motion for summary judgment 138 , dismissing the case in its entirety ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

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

LADON S. CHURN,
Plaintiff,
File No. 2:11-CV-166
v.
HON. ROBERT HOLMES BELL
UNKNOWN PARKKILA, et al.,
Defendants.
/
ORDER APPROVING AND ADOPTING
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On January 27, 2014, United States Magistrate Judge Timothy P. Greeley issued a
report and recommendation (“R&R”) recommending that Defendants’ motion for summary
judgment (Dkt. No. 138) be granted and that this case be dismissed in its entirety. (Dkt. No.
153, R&R.) Plaintiff Ladon S. Churn filed objections to the R&R and “Nunc Pro Tunc
Objections” on February 3, 2014, and a supplement on February 10, 2014. (Dkt. Nos. 159,
160, 162.)
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).
In this civil rights action Plaintiff alleges that Defendants, MDOC employees,
threatened and instigated violent attacks by other prisoners against Plaintiff and selectively
enforced MDOC rules against Plaintiff based on his race and in retaliation for exercise of his
First Amendment rights. (Compl. ¶¶ 1-3.) The R&R recommends that Plaintiff’s complaint
be dismissed in its entirety because Plaintiff’s claims that occurred prior to May 2, 2008 are
barred by the statute of limitations; Plaintiff failed to properly exhaust his administrative
remedies with respect to Defendants Rutter, Mayotte and Viitala; and Plaintiff’s claim
against Defendant Parkkila for verbal harassment does not support an Eighth Amendment
violation. Plaintiff objects to all of these recommendations.
Plaintiff contends that his claims that pre-date May 2, 2008, are not barred by the
statute of limitations either because they are continuing violations, the statute of limitations
was tolled under Mich. Comp. Laws. § 600.5855 as a result of Defendants’ fraudulent
concealment of Plaintiff’s claim, and Defendants conspired to withhold the evidence from
Plaintiff.
Plaintiff’s arguments lack merit. As noted in the R&R, the applicable limitations
period for a § 1983 action is the three year limitations period for personal injury actions
under Mich. Comp. Laws § 600.5805(8). The Michigan Supreme Court has rejected the
continuing violations doctrine and has held that a person must file a claim under § 5805
within three years of the date his cause of action accrues. Garg v. Macomb Cnty. Cmty.
Mental Health Servs., 696 N.W.2d 646, 659 (Mich. 2005); see also Terlecki v. Stewart, 754

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N.W.2d 899, 907 (Mich. Ct. App. 2008) (noting that Garg opined that the continuing
violations doctrine is contrary to the language of § 5805 and has no continued place in the
jurisprudence of this state). Neither has Plaintiff demonstrated that he is entitled to tolling
under the fraudulent-concealment exception to the statute of limitations.

Fraudulent

concealment requires “concealment by the defendant of the existence of a claim or the
identity of a potential defendant.” Doe v. Roman Catholic Archbishop of Archdiocese of
Detroit, 692 N.W.2d 398, 405 (Mich. Ct. App. 2004) (quoting McCluskey v. Womack, 470
N.W.2d 443, 446 (Mich. Ct. App. 1991)). “The plaintiff must prove that the defendant
committed affirmative acts or misrepresentations that were designed to prevent subsequent
discovery. Mere silence is insufficient.” Sills v. Oakland Gen. Hosp., 559 N.W.2d 348, 352
(Mich. Ct. App. 1996). Plaintiff has not alleged that Defendants engaged in affirmative acts
or misrepresentations designed to conceal his potential cause of action. Plaintiff complained
in grievances filed as early as November 2009, of manipulative transfers designed to cause
Security Threat Group (“STG”) members to fight. (See R&R at 10.) Plaintiff has alleged
no more than that Defendants were silent about the details of the evidence by which to
establish his cause of action, and that is not sufficient to trigger the fraudulent concealment
rule. Doe, 692 N.W.2d at 407. Finally, Plaintiff’s allegation that Defendants engaged in a
conspiracy is superfluous to the statute of limitations issue because “it is the wrongful act,
not the agreement to commit a wrongful act, that commences the running of the limitations
period.” Terlecki v. Stewart, 754 N.W.2d 899, 906 (Mich. Ct. App. 2008).
Plaintiff has raised various arguments in support of his contention that his grievances

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were not properly rejected, but he has not challenged the Magistrate Judge’s determination
that he failed to identify Defendants Rutter, Mayotte and Viitala in any timely-filed
grievance. Because Plaintiff has not shown that he properly exhausted administrative
remedies against these Defendants, their motion for summary judgment is properly granted.
Finally, this Court agrees with the R&R that Parkkila is entitled to dismissal because
Plaintiff’s claims of verbal harassment fail to support an Eight Amendment violation.
In addition to his objections to the R&R, Plaintiff has also filed a document entitled
“Nunc Pro Tunc Objections.” (Dkt. No. 160). Through this document Plaintiff requests this
Court to overrule virtually all of the Magistrate Judge’s non-dispositive orders in this case,
including orders concerning discovery, requests for counsel, and requests for subpoenas
which Plaintiff contends will prejudice his case. (See, e.g., Dkt. Nos. 11, 46, 86, 97, 98 110,
132.)
Plaintiff’s objections to these non-dispositive orders are untimely. A party may file
objections to a magistrate judge’s non-dispositive order within 14 days after being served
with a copy of the order. Fed. R. Civ. P. 72(a). Because Plaintiff is objecting to orders dated
between December 29, 2011, and November 6, 2013, Plaintiff’s objections are not timely.
In addition, even if Plaintiff’s objections were timely, they lack merit. This Court’s review
of a magistrate judge’s resolution of a non-dispositive pretrial matter is limited to
determining whether the order is “clearly erroneous” or “contrary to law.” 28 U.S.C.
§ 636(b)(1)(A); Fed. R. Civ. P. 72(a); W.D. Mich. LCivr 72.3(a); Massey v. City of
Ferndale, 7 F.3d 506, 509 (6th Cir. 1993) (“When a magistrate judge determines a

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non-excepted, pending pretrial matter, the district court has the authority to ‘reconsider’ the
determination, but under a limited standard of review.”) Findings of fact are reviewed under
the “clearly erroneous” standard, and legal conclusions are reviewed under the “contrary to
law” standard. Gandee v. Glaser, 785 F.Supp. 684, 686 (S.D. Ohio 1992). Plaintiff has not
shown that the Magistrate Judge’s order are clearly erroneous or contrary to law.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s objections to the R&R (Dkt. No. 159)
are OVERRULED.
IT IS FURTHER ORDERED that Plaintiff’s nunc pro tunc objections (Dkt. No.
160) are DENIED.
IT IS FURTHER ORDERED that the January 27, 2014, R&R of the Magistrate
Judge (Dkt. No. 153) is APPROVED and ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ motion for summary judgment (Dkt.
No. 138) is GRANTED and this case is DISMISSED in its entirety.
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: February 24, 2014

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

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