Opinion
Case No. 12-12516
10-31-2013
MICHAEL RICHARD, Plaintiff, v. MICHAEL BOUCHARD, et al., BRIAN SPIKER, DONALD SHELTROWN, GREGORY SAKO, CRAIG J. HANSELMAN, and GREG A. SMITH Defendants.
HONORABLE AVERN COHN
ORDER ADOPTING REPORT AND RECOMMENDATION (Doc. 26)
AND
GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT (Doc. 13)
I.
This is a prisoner civil rights case under 42 U.S.C. § 1983. Plaintiff, proceeding pro se and without payment of fees, claims that several defendants violated his constitutional rights while a pretrial detainee in the Oakland County Jail. In essence, plaintiff alleges that he was placed in an overcrowded section of the jail (the "bullpen") and forced to sleep on a brick floor, where he was eventually assaulted by other inmates for being a "snitch" after coming to the aid of another younger inmate who was previously assaulted. Plaintiff was severely injured as a result of the assault; he was hospitalized for several days before being returned to the jail.
The matter has been referred to a magistrate judge for all pretrial proceedings. All of the defendants Michael Bouchard, Brian Spiker, Donald Sheltrown, Gregory Sako, Craig J. Hanselman, and Greg A. Smith filed a motion for summary judgment (Doc. 13), which the magistrate judge correctly construed as a motion to dismiss. On September 3, 2013, the magistrate judge issued a report and recommendation (MJRR), recommending that the that the motion be granted as to Michael Bouchard and Brian Spiker, and that they be dismissed with prejudice. The magistrate judge also recommended that the motion be denied as to Donald Sheltrown, Gregory Sako, Craig J. Hanselman, and Greg A. Smith. Neither party has objected to the MJRR and the time for objections has passed.
The MJRR stated that objections were to be filed within 14 days of service. The MJRR was mailed on both parties at their addresses of record on September 4, 2013. Accounting for service, objections were due at least by September 20, 2013. However, plaintiff filed a notice of change of address on September 16, 2013. To ensure that plaintiff received the MJRR and was given adequate time to file objections, the Clerk mailed a copy of the MJRR to plaintiff at his new address on September 24, 2013. To date, no objections have been filed.
II.
The failure to file objections to the MJRR waives any further right to appeal. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). Likewise, the failure to object to the MJRR releases the Court from its duty to independently review the motions. Thomas v. Arn, 474 U.S. 140, 149 (1985). However, the Court has reviewed the MJRR and agrees with the magistrate judge. As the magistrate judge explained, plaintiff has not alleged an actionable claim against Bouchard or Spiker. However, plaintiff has stated a plausible deliberate indifference claim against Sheltrown, Sako, and Hanselman as well as a plausible retaliation claim against these same defendants as a result of plaintiff's protected grievance activity. The magistrate judge also correctly concluded that plaintiff alleged a plausible claim against Smith for deliberate indifference arising out of a failure to treat.
III.
Accordingly, the findings and conclusions of the magistrate judge are ADOPTED as the findings and conclusions of the Court. Defendants' motion is GRANTED as to Michael Bouchard and Brian Spiker. Plaintiff's claims against them are DISMISSED WITH PREJUDICE. Defendants' motion is DENIED as to Donald Sheltrown, Gregory Sako, Craig J. Hanselman, and Greg A. Smith.
SO ORDERED.
Avern Cohn
UNITED STATES DISTRICT JUDGE
I hereby certify that a copy of the foregoing document was mailed to the attorneys of record on this date, October 31, 2013, by electronic and/or ordinary mail.
Sakne Chami
Case Manager, (313) 234-5160