Summary
finding that MDOC employees sued in their individual capacities under § 1983 for alleged due process and Eighth Amendment violations were in privity with MDOC, a party to a state-court administrative appeal of a misconduct hearing involving the same issues
Summary of this case from Scott v. City of DetroitOpinion
Case No. 13-11599
03-17-2014
RANDY BERKSHIRE, Plaintiff, v. JOHN KLIMOWICZ, ET AL., Defendants.
HON. TERRENCE G. BERG
HON. DAVID R. GRAND
OPINION AND ORDER ACCEPTING AND
ADOPTING REPORT AND RECOMMENDATION (DKT. 20)
Plaintiff Randy Berkshire ("Plaintiff") is a Michigan prisoner who, at all times relevant to the facts alleged in the Complaint, was confined at the Macomb Correctional Facility. This lawsuit involves allegations that Plaintiff was mistreated by prison staff following a suicide attempt on August 31, 2011. The matter is before the Court on Defendants' motion for summary judgment (Dkt. 14).
Magistrate Judge David Grand issued a Report and Recommendation (Dkt. 20), recommending that Defendants' motion for summary judgment be granted, except for Plaintiff's Eighth Amendment denial of medical care claim against Defendant Klimowicz. As to that claim, Magistrate Judge Grand recommended that Defendants' motion for summary judgment be denied without prejudice, thus permitting Defendant Klimowicz to file second motion for summary judgment as to that sole remaining claim. According to Magistrate Judge Grand, Plaintiff's Eighth Amendment claim against Defendant Klimowicz was not clearly pled in the Complaint, thus Defendant Klimowicz did not adequately argue for summary judgment as to the claim, and did not attach certain documents to the motion for summary judgment relevant to the summary adjudication of that claim. As such, Magistrate Judge Grand determined that it was appropriate to permit Defendant Klimowicz to file a second motion for summary judgment as to Plaintiff's Eighth Amendment claim, and to supplement the factual record.
Plaintiff filed timely objections (Dkt. 25) to Magistrate Judge Grand's Report and Recommendation, objecting only to the recommendation that Defendant Klimowicz's motion for summary judgment be denied without prejudice. Notably, Plaintiff did not object to Magistrate Judge Grand's recommendation that Defendants' motion for summary judgment be granted as to the remainder of Plaintiff's claims. The district court will make a "de novo determination of those portions of the report . . . to which objection is made." 28 U.S.C. § 636(b)(1). Since Plaintiff has not objected to the recommendation that Defendants' motion for summary judgment be granted as to all claims (with the exception of the Eighth Amendment claim against Defendant Klimowicz), the Court hereby adopts that recommendation and those claims are dismissed with prejudice. See Thomas v. Arn, 474 U.S. 140, 149-52 (1985).
As to Magistrate Judge Grand's recommendation that Defendants' motion for summary judgment be denied without prejudice as to Plaintiff's Eighth Amendment denial of medical care claim against Defendant Klimowicz, the Court finds that this recommendation is sound. Defendants were not clearly on notice that Plaintiff was alleging such a claim in the Complaint; it was only through a very liberal reading of the Complaint that Magistrate Judge Grand found that Plaintiff brought such a claim against Defendant Klimowicz. It is not unduly prejudicial to Plaintiff to permit Defendant Klimowicz to file a second summary judgment motion, seeking dismissal of this sole remaining claim.
Accordingly, it is hereby ORDERED that Magistrate Judge Grand's Report and Recommendation of December 24, 2013, (Dkt. 20) is ACCEPTED and ADOPTED. It is FURTHER ORDERED that Defendants' motion for summary judgment (Dkt. 14) is GRANTED as to all claims, with the exception of Plaintiff's Eighth Amendment denial of medical care claim against Defendant Klimowicz. As to that claim, Defendants' motion for summary judgment is DENIED WITHOUT PREJUDICE. Defendant Klimowicz is permitted to file a second motion for summary judgment, seeking dismissal of that sole remaining claim.
SO ORDERED.
_______
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service
I hereby certify that this Order was electronically submitted on March 17, 2014, using the CM/ECF system, which will send notification to all parties.
H. Monda for A. Chubb
Case Manager