Tippins #342855 v. Washington et al

Filing 75

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 53 ; Motion Seeking Transfer 17 is DENIED; motion requesting evidentiary hearing 24 is DENIED; motion seeking injunction and/or temporary restraining order 40 is DENIED; plaintiff's appeal from the Magistrate's order 61 is DENIED; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JOHNNY TIPPINS,
Plaintiff,
Case No. 2:18-cv-69
v.
HON. JANET T. NEFF
HEIDI WASHINGTON, et al.,
Defendants.

____________________________/

OPINION AND ORDER
On May 15, 2018, Plaintiff initiated this prisoner civil rights action pursuant to 42 U.S.C.
§ 1983. He subsequently filed motions to transfer to a new facility and for injunctive relief (ECF
Nos. 17, 24 & 40). On March 4, 2019, the Magistrate Judge issued a Report and Recommendation
(R&R), recommending that this Court deny the motions. Additionally, Plaintiff filed several nondispositive motions (ECF Nos. 19, 23, 30, 37, 45 & 48), which the Magistrate Judge denied in an
Order also issued on March 4, 2019 (ECF No. 52). Now pending before the Court are Plaintiff’s
Objections to the Report and Recommendation (ECF No. 59) and his appeal from the Magistrate
Judge’s Order (ECF No. 61). Defendants did not file any response to either Plaintiff’s objections
or his appeal. For the following reasons, the Court denies Plaintiff’s objection and denies his
appeal.
Plaintiff’s Objections to the Magistrate Judge’s Report and Recommendation
Plaintiff presents three objections to the Magistrate Judge’s Report and Recommendation.
In accordance with 28 U.S.C. § 636(b)(1)(A) and W.D. Mich. LCivR 72.3(b), the Court has

performed de novo consideration of those portions of the Report and Recommendation to which
objections have been made.
First, Plaintiff argues that the Magistrate Judge erred in determining that he had not
demonstrated “a strong likelihood of success on the merits,” the first factor in the multi-factor test
for injunctive relief (Objs., ECF No. 59 at PageID.287). According to Plaintiff, “these Defendants
clearly recognize the specific threat to Mr. Tippins described in the kite and disregarded the risk
to Plaintiff’s safety” (id.). However, as the Magistrate Judge pointed out, Plaintiff was unable to
offer any specifics regarding the alleged threats against him, and Defendants were unable to verify
the alleged threats during their investigation (R&R, ECF No. 53 at PageID.269). Plaintiff’s mere
assertion to the contrary does not demonstrate any factual or legal error in the Magistrate Judge’s
analysis. Therefore, his first objection is denied.
Second, Plaintiff argues that the Magistrate Judge erred in determining that he had not
demonstrated any “irreparable injury” (Objs., ECF No. 59 at PageID.288-290). Plaintiff opines
that “he has shown that he faces irreparable injury if he had to stay at Alger Correctional Facility
because of the longstanding [sic] of violence at the prison and the fact that inmates are aware of
the hit that was taken out on him” (id. at PageID.290). Again, Plaintiff’s mere assertion reveals
no factual or legal error in the Magistrate Judge’s determination that Plaintiff has not shown that
he is subjected to any verifiable threat. Therefore, his second objection is also denied.
Third, Plaintiff argues that the Magistrate Judge erred in weighing the third and fourth
factors against issuing injunctive relief (Objs., ECF No. 59 at PageID.291-293). According to
Plaintiff, “[t]he interference by this federal district court in administration of this state prison
matter is not necessary [sic] disruptive” (id. at PageID.291). Plaintiff argues that “Defendants had
shown that they will continue to disregard an objectively intolerable risk of harm and has

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demonstrated the continuance of that disregard during the remainder of the litigation and into the
future” (id. at PageID.292). The Magistrate Judge properly pointed out that absent a sufficient
showing of a violation of constitutional rights, public welfare militates against the issuance of
extraordinary relief in the prison context (R&R, ECF No. 53 at PageID.270, citing Glover v.
Johnson, 855 F.2d 277, 286-87 (6th Cir. 1988)). Plaintiff’s mere assertion to the contrary does not
reveal any error in the Magistrate Judge’s determination that the necessarily high showing has not
been made in this case. Therefore, Plaintiff’s third objection is denied. Accordingly, the Court
will adopt the Report and Recommendation as the Opinion of the Court.
Plaintiff’s Appeal from the Magistrate Judge’s Order
In his March 4, 2019 Order (ECF No. 52), the Magistrate Judge resolved six nondispositive motions filed by Plaintiff (ECF Nos. 19, 23, 30, 37, 45 & 48). In his appeal from the
Order, Plaintiff challenges the Magistrate Judge’s denial of only three of the six motions (ECF
Nos. 30, 45 & 48).
First, on November 28, 2018, Plaintiff moved for leave to depose Defendants (ECF No.
30). The Magistrate Judge denied the motion, determining that Plaintiff was not required to seek
leave to depose Defendants (ECF No. 52 at PageID.265). In his appeal from the Magistrate
Judge’s Order, Plaintiff does not assert any error by the Magistrate Judge but points out that “[i]f
Mr. Tippins is only required to submit Notices, which he has, the docket entries has yet to identify
the Notice” (ECF No. 61 at PageID.328). The Court observes that the docket includes entries
reflecting Plaintiff’s Notice of Deposition (ECF No. 57), Certificate of Service of Notice of
Deposition (ECF No. 70), and supplement regarding notice of deposition (ECF No. 73). Plaintiff’s
appeal from this portion of the Magistrate Judge’s Order is denied.

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Next, on February 13, 2019, Plaintiff moved to compel certain discovery from Defendants
(ECF No. 45). The Magistrate Judge determined the discovery had been provided and that
Plaintiff’s discovery request was therefore properly denied as moot (ECF No. 52 at PageID.265).
In his appeal, Plaintiff delineates five documents, six admissions and six interrogatories that he
contends remain outstanding (ECF No. 61 at PageID.325-326). However, as pointed out by the
Magistrate Judge, the docket includes entries reflecting Defendants served their responses to
Plaintiff’s discovery requests on February 7 and 21, 2019 (ECF Nos. 43 & 50). Plaintiff therefore
fails to demonstrate that the Magistrate Judge’s resolution of his motion is either clearly erroneous
or contrary to law. See 28 U.S.C. § 636(b)(1)(A). To the extent Plaintiff is attempting to challenge
the sufficiency of the discovery he received, Plaintiff’s argument also fails to demonstrate any
error where Plaintiff has failed to submit or sufficiently describe the discovery requests in dispute.
See W.D. Mich. LCivR 7.1(b) (requiring that all discovery motions “shall set forth verbatim, or
have attached, the relevant discovery request and answer or objection”).
Third, on February 14, 2019, Plaintiff moved for leave to allow “additional interrogatories”
(ECF No. 48 at PageID.250). The Magistrate Judge denied the request because Defendant failed
to explain why he needed additional interrogatories (ECF No. 52 at PageID.266). In his appeal,
Plaintiff does not dispute that his motion failed to supply any basis for his request. Plaintiff
therefore again fails to demonstrate that the Magistrate Judge’s resolution of his motion is either
clearly erroneous or contrary to law. See 28 U.S.C. § 636(b)(1)(A). Further, to the extent Plaintiff
asserts that he needs to “rephrase” certain interrogatories (ECF No. 61 at PageID.327), it appears
that Plaintiff served such rephrased interrogatories on Defendants on March 11, 2019 (Certificate
of Service, ECF No. 62). In sum, Plaintiff’s appeal is denied.
Therefore:

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IT IS HEREBY ORDERED that Plaintiff’s Objections (ECF No. 59) are DENIED and
the Report and Recommendation of the Magistrate Judge (ECF No. 53) is APPROVED and
ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s Motion Seeking Transfer (ECF No. 17) is
DENIED for the reasons stated in the Report and Recommendation.
IT IS FURTHER ORDERED that Plaintiff’s Motion Requesting Evidentiary Hearing on
Motion Seeking Transfer (ECF No. 24) is DENIED for the reasons stated in the Report and
Recommendation.
IT IS FURTHER ORDERED that Plaintiff’s Motion Seeking Injunction and/or
Temporary Restraining Order (ECF No. 40) is DENIED for the reasons stated in the Report and
Recommendation.
IT IS FURTHER ORDERED that Plaintiff’s appeal from the Magistrate Judge’s Order
(ECF No. 61) is DENIED.
IT IS FURTHER ORDERED that this Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that an appeal of this decision would not be taken in good faith.

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

Dated: April 12, 2019

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