Carter v. Weidman et al, No. 2:2008cv11862 - Document 87 (E.D. Mich. 2010)
Court Description: OPINION AND ORDER granting 69 Motion for Summary Judgment; adopting 82 Report and Recommendation. Signed by District Judge Patrick J Duggan. (MOre)
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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION JOEL CARTER, Plaintiff, Case No. 08-11862 v. Honorable Patrick J. Duggan WEIDMAN, MEYHOFER, SMITH, TIPTON, BABCOCK, R. HUGHES, BONNON, D. HUGHES, DAVIS, WINN, ALEXANDER, STEVESON, BIRKETT, TIM BLAIN, ANDY CHARBONNEAU, STEVE BELLOWS, STACY KOCOT, and RICHARD COLAMARINO, Defendants. / OPINION AND ORDER At a session of said Court, held in the U.S. District Courthouse, Eastern District of Michigan, on January 14, 2010. PRESENT: THE HONORABLE PATRICK J. DUGGAN U.S. DISTRICT COURT JUDGE Joel Carter ( Plaintiff ), a state prisoner, filed this civil action against defendants pursuant to 42 U.S.C. ยง 1983 on May 1, 2008. In his complaint, Plaintiff alleges that defendants violated his constitutional right to be free from cruel and unusual punishment and excessive force, denied him a protected liberty interest without due process of law, conducted an illegal search, committed an assault and battery under Michigan law, and engaged in a conspiracy to deny him his constitutional rights. On September 8, 2008, this Court referred all pre-trial matters in this case to Magistrate Judge Mona K. Majzoub. On May 4, 2009, the Court granted a motion for summary judgment filed by defendants Weidman, Smith, Tipton, Babcock, R. Hughes, Bonnon, D. Hughes, Alexander, and Birkett. On June 22, 2009, the Court dismissed defendant Davis based Plaintiff s failure to properly identify the defendant in time for service of process. On June 23, 2009, the remaining defendants Meyhofer, Winn, Steveson, Tim Blain, Andy Charbonneau, Steve Bellows, Stacy Kocot, and Richard Colamarino filed a motion for summary judgment. On August 7, 2009, Plaintiff responded to the motion and filed a motion for partial summary judgment.1 The defendants replied on August 11, 2009. On November 16, 2009, Magistrate Judge Majzoub filed a Report and Recommendation (R&R) recommending that this Court grant defendants motion for summary judgment and deny Plaintiff s motion for partial summary judgment. At the conclusion of the R&R, Magistrate Judge Majzoub advises the parties that they may object to and seek review of the R&R within ten days of service upon them.2 (R&R at 10.) She further specifically advises the parties that [f]ailure to file specific objections constitutes a waiver of any further right of appeal. ( Id.) Neither party filed objections to the R&R. The Court has carefully reviewed the R&R and concurs with the conclusions reached by Magistrate Judge Majzoub. In a separate matter presently before the Court, Plaintiff filed a motion for copies of his 1 On November 16, 2009, Magistrate Judge Majzoub issued an opinion and order granting a motion previously filed by Plaintiff to extend the time for him to file his response to the motion for summary judgment, making Plaintiff s August 7, 2009, response timely. 2 Since the issuance of Magistrate Judge Majzoub s R&R, the time for objecting to R&Rs has been extended to 14 days. Fed. R. Civ. P. 72(b)(2). Both the 10 and 14 day periods for objection have expired in this case. 2 objections to Magistrate Judge Majzoub s March 3, 2009, R&R. In that R&R, Magistrate Judge Majzoub recommended that the Court grant the prior motion for summary judgment from defendants Weidman, Smith, Tipton, Babcock, R. Hughes, Bonnon, D. Hughes, Alexander, and Birkett. Plaintiff requested a copy of his objections to facilitate his appeal to the Sixth Circuit regarding the granting of that motion. Plaintiff filed his notice of appeal on that issue on May 26, 2009. On June 22, 2009, however, the Sixth Circuit dismissed Plaintiff s appeal as an impermissible appeal of an interlocutory order. On November 16, 2009, Magistrate Judge Majzoub denied Plaintiff s motion for copies on grounds that the appeal had been dismissed. On December 3, 2009, Plaintiff filed an objection to Magistrate Judge Majzoub s order. With the granting of the motion for summary judgment from the remaining defendants as discussed above the Court will be issuing a final judgment of dismissal in this case. Upon issuance of the judgment, the case will be appealable to the Sixth Circuit. Under these circumstances, the Court sees no reason to deny Plaintiff a copy of his prior objections and require him to return to this Court yet again should he decide to pursue an appeal in the Sixth Circuit. Accordingly, IT IS ORDERED that defendants motion for summary judgment is GRANTED. IT IS FURTHER ORDERED that Plaintiff s motion for partial summary judgment is DENIED. IT IS FURTHER ORDERED that Plaintiff s motion for copies of his objections to 3 the March 3, 2009, R&R is GRANTED.3 A judgment consistent with this opinion shall issue. s/PATRICK J. DUGGAN UNITED STATES DISTRICT JUDGE Copies to: Joel Carter #410324 Ionia Maximum Correctional Facility 1576 W. Bluewater Highway Ionia, MI 48846 Clifton F. Schneider, Esq. 3 A copy of the objections is being forwarded to Plaintiff along with this opinion. 4
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