Taylor #120631 v. Sjoholm et al

Filing 26

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 12 , 23 , 16 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, sdb)

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

DAVID ALAN TAYLOR,
Plaintiff,
File No. 2:12-CV-136
v.
HON. ROBERT HOLMES BELL
UNKNOWN SJOHOLM, et al.,
Defendants.
/
ORDER APPROVING AND ADOPTING
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On May 15, 2013, United States Magistrate Judge Timothy P. Greeley issued a report
and recommendation (“R&R”) recommending that Defendants’ motion for summary
judgment (Dkt. No. 16) be granted based on Plaintiff David Alan Taylor’s failure to exhaust
his available administrative remedies. (Dkt. No. 23, R&R.) Plaintiff filed objections to the
R&R on May 28, 2013. (Dkt. No. 24.)
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).
The Magistrate Judge’s finding that Plaintiff failed to exhaust his administrative
remedies was based Plaintiff’s written waivers of his right to a hearing to contest the
misconducts filed against him. (Dkt. No. 1, Compl. Exs. 6, 7, Page ID#25, 26.) Plaintiff
objects to the R&R because he contends that the Magistrate Judge failed to consider
Plaintiff’s declaration filed in response to Defendants’ motion for summary judgment.
Plaintiff stated in his declaration that Sgt. Myron tricked him into signing the waiver of
hearing by telling him that he needed to sign for his receipt and by blocking Plaintiff’s view
of the form with other papers. (Dkt. No. 19, Pl.’s Decl. ¶ 9.) Plaintiff asserted that he would
not have knowingly waived his rights to a hearing, and that he was expecting a hearing
within a week or so. (Id.)
Plaintiff’s declaration is not sufficient to create a material issue of fact for trial.
Plaintiff does not deny that he signed two waivers of hearing. Directly above the signature
line the waivers state in bold caps “WAIVER OF CLASS II OR III HEARING.” (Compl.
Exs. 6, 7.) Directly to the left of the signature line is the statement “I understand I have a
right to a hearing. I waive my right to a hearing and plead guilty to all charges. I also waive
my right to appeal and accept the sanctions imposed.” (Id.) Although Plaintiff attached
copies of the misconduct reports with waivers to his verified complaint, Plaintiff did not
allege that he had been tricked into signing the waivers in his complaint or in his first
declaration. (Dkt. Nos. 1, 14.) Neither did he allege that he was denied a hearing on the

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misconducts. Plaintiff did not attempt to deny the genuineness of the waivers until their
significance became apparent in Defendants’ motion for summary judgment. A party cannot
create a genuine issue of material fact after a motion for summary judgment has been filed
by submitting an affidavit that contradicts a previously sworn statement. See Lanier v.
Bryant, 332 F.3d 999, 1004 (6th Cir. 2003) (“When a motion for summary judgment has been
filed, a party cannot create a factual issue by filing an affidavit which contradicts earlier
testimony.”); Preston v. Clayton Homes, Inc., 167 F. App'x 488, 491 (6th Cir. 2006) (“After
a motion for summary judgment has been filed, a party cannot create a material issue of fact
by filing an affidavit which contradicts his earlier deposition testimony.”). Cleveland v.
Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999) (noting that federal courts have held
“with virtual unanimity that a party cannot create a genuine issue of fact sufficient to survive
summary judgment simply by contradicting his or her own previous sworn statement”).
Plaintiff’s efforts to distance himself from his written waivers after the motion for
summary judgment was filed are not sufficient to create a material issue of fact for trial.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff’s objections to the R&R (Dkt. No. 24) are
OVERRULED.
IT IS FURTHER ORDERED that the May 15, 2013, R&R (Dkt. No. 23) is
APPROVED and ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ motion for summary judgment (Dkt.

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No. 16) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s motion for summary judgment (Dkt.
No. 12) is 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.

Date: January 24, 2014

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

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