Parker #593090 v. Horton et al

Filing 64

ORDER ADOPTING REPORT AND RECOMMENDATION 11 and denying 4 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
BRUCE PARKER,
Plaintiff,
v.
CONNIE HORTON, ET AL.
Defendants.

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No. 2:18-CV-80
HONORABLE PAUL L. MALONEY

ORDER ADOPTING REPORT AND RECOMMENDATION
This is a civil rights action brought by a pro se state prisoner under 42 U.S.C. § 1983.
The suit arises out of the conditions of Plaintiff’s confinement at the Chippewa Correctional
Facility. He claims that numerous prison officials violated his First Amendment right to be
free from retaliation and his Fourteenth Amendment substantive due process rights. The
matter is now before the Court on Plaintiff’s objections to the Report and Recommendation,
which recommended denying Plaintiff’s motion for a temporary restraining order.
With respect to a dispositive motion, a magistrate judge issues a report and
recommendation, rather than an order. After being served with a report and
recommendation issued by a magistrate judge, a party has fourteen days to file written
objections to the proposed findings and recommendations. 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b). A district court judge reviews de novo the portions of the R & R to which
objections have been filed. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Only those
objections that are specific are entitled to a de novo review under the statute. Mira v.

Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam) (holding the district court need not

provide de novo review where the objections are frivolous, conclusive or too general because
the burden is on the parties to “pinpoint those portions of the magistrate’s report that the
district court must specifically consider”). Failure to file an objection results in a waiver of
the issue and the issue cannot be appealed. United States v. Sullivan, 431 F.3d 976, 984 (6th
Cir. 2005); see also Thomas v. Arn, 474 U.S. 140, 155 (upholding the Sixth Circuit’s
practice). The district court judge may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b).
Plaintiff does not object to the R & R’s recitation of the facts alleged in the complaint.
However, he does object to the magistrate judge’s conclusion that a temporary restraining
order to enjoin speculative, future sexual harassment and retaliation was unnecessary. He
also asserts that the magistrate judge improperly weighed the factors for granting a temporary
restraining order.
As to the former, Plaintiff stated in his motion that he is seeking an order “enjoining
defendants, their successors in office, agents, and employees, and all other persons acting in
concert and participation with them, from retaliating against plaintiff and from sexually and
physically assaulting plaintiff or conducting skewed and bias[ed] investigations and finally
filing file [sic] misconducts and disciplinary reports against plaintiff.” He asserts that an
injunction will protect him from “further and future harm” by Defendants.
The magistrate judge correctly concluded that a temporary restraining order to
prevent hypothetical sexual harassment or retaliation in the future serves no purpose. In
other words, a court order enjoining future criminal acts, such as sexual assault, or future
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intentional violations of Plaintiff’s constitutional rights imposes no additional legal duty on
prison officials that they were not already subject to. Cf. Farmer v. Brennan, 515 U.S. 825,
834 (1994) (imposing constitutional duty on prison officials to protect prisoners committed
to their care).
Second, the Court has conducted a de novo review of Plaintiff’s objection that the
magistrate judge improperly weighed the factors for injunctive relief. See Planned

Parenthood Ass’n v. City of Cincinnati, 822 F.2d 1390, 1393 (6th Cir. 1987). The Court
finds no error in the magistrate judge’s analysis, and particularly in light of the heavy burden
necessary for injunctive relief within the prison setting, See Kendrick v. Bland, 740 F.3d
432, 438 n.8 (6th Cir. 1984), finds that Plaintiff has not met his burden for injunctive relief.
Accordingly, the Court ADOPTS the Report and Recommendation as the opinion
of the Court (ECF No. 11), OVERRULES Plaintiff’s objections (ECF Nos. 15), and
DENIES Plaintiff’s motion for a temporary restraining order (ECF No 4).
Date: March 12, 2019

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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