Cook v. Cashler

• Decision Date: 10 May 2013
• Docket Number: File no: 1:11-CV-637
• Parties: ROBERT CHARLES COOK #128535, Plaintiff, v. UNKNOWN CASHLER, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

ROBERT CHARLES COOK #128535, Plaintiff,

v.UNKNOWN CASHLER, et al., Defendants.

File no: 1:11-CV-637

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

Dated: May 10, 2013

HON. ROBERT HOLMES BELL

OPINION

On March 25, 2013, this Court approved and adopted Magistrate Judge Joseph G. Scoville's March 5 Report and Recommendation ("R&R"), denied Plaintiff's various pending motions, granted Defendant Jackson's motion to dismiss, granted Defendants Galiton, Gibson, Scrivens, Watson, Sutherby, McLellan, and Cashler's motions for summary judgment, dismissed Plaintiff's claim for declaratory relief against Defendant Jackson as moot, dismissed Plaintiff's claims against Defendant Wakefield for failure to state a claim upon which relief can be granted, dismissed Plaintiff's claims against Defendants Galiton, Gibson, Scrivens, Watson, Sutherby, McLellan, and Cashler for failure to properly exhaust any claim against said Defendants, and entered judgment in favor of Defendants. (Dkt. Nos. 60-61.)

Presently before the Court are two motions for extensions of time (Dkt. Nos. 63-63), and a motion for reconsideration (Dkt. No. 65), all filed by Plaintiff.A. First Motion for Extension

Plaintiff's first motion for an extension of time was filed on March 25, 2013, and sought an extension of time within which to file objections to the March 5 R&R. (Dkt. No. 62.) This motion and the attached objections were not received by the Court until after it issued the order approving and adopting the R&R and entered judgment in favor of Defendants. (Dkt. Nos. 60-61.)

Plaintiff subsequently provided a receipt indicating that his first motion for an extension and the attached objections were mailed on March 20, 2013, within the time allotted to file objections to the R&R. (Dkt. No. 63, Ex. A.) Documents prepared by pro se prisoners are considered "filed" at the time of delivery to prison authorities for forwarding to the court clerk, rather than on the date of receipt by the clerk. Houston v. Lack, 487 U.S. 266, 276 (1988). Thus, in light of the date written on the legal mail forms, the Court will accept Plaintiff's objections as timely filed. Because the objections have been filed and will be considered at this time, the first motion for extension will be denied as moot. However, because these objections lack merit, the Court will affirm its March 25 order and judgment.

1. Law

This Court makes a de novo determination of those portions of an R&R to which specific objections are made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). "[A] general objection to a magistrate's report, which fails to specify the issues of contention, does not satisfy the requirement that an objection be filed. The objections must be clear enough toenable the district court to discern those issues that are dispositive and contentious." Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). The Court may accept, reject, or modify any or all of the Magistrate Judge's findings or recommendations. Id.

2. Objections

i. Defendants Cashler and McClellan

Plaintiff's first objection is that this Court, specifically with regard to Defendants Cashler and McClellan, ignored the well-settled rule of law that prisoners cannot file grievances on disciplinary matters. Plaintiff provides no source for this "well-settled rule of law," although it appears to stem from Michigan Department of Corrections ("MDOC") Policy Directive 03-02-130, which provides that decisions made in grievance hearings and decisions made in minor misconduct hearings are non-grievable issues. (Dkt. No. 19, Ex. A, ¶ F.)

However, Plaintiff's allegations against Cashler do not regard decisions made in any hearings. Instead, throughout his many vague and oftentimes irrelevant allegations regarding Cashler, Plaintiff alleges the following: Cashler wrote fabricated theft tickets in retaliation; Cashler was part of a conspiracy to violate Plaintiff's constitutional rights; Cashler "went on a crime spree" by shaking cells down, reading legal papers, destroying prisoners' property, and yelling and screaming at Plaintiff; Cashler wrote Plaintiff a false major misconduct for refusing to obey a direct order; and Cashler wrote Plaintiff a false minor ticket for "Temporary out of Place." (Dkt. No. 1, at PageID# 10-11, 13, 17-20, 26.) All of theseallegations could have been grieved because the behavior occurred outside of the disciplinary hearing context.

Nor do Plaintiff's allegations against McClellan, a hearings investigator, directly regard decisions made in any hearings. Plaintiff alleges that McClellan engaged in improper conduct (including the obstruction of justice and refusal to investigate Plaintiff's defenses) during the investigation of misconduct tickets, was part of the conspiracy to violate Plaintiff's constitutional rights, violated due process and equal protection of the law by illegally pulling a theft ticket from Plaintiff's file before a major disciplinary hearing on the ticket was held on June 1, 2008, refused to investigate or question witnesses before another hearing, and refused to give Plaintiff access to his records and files. (Dkt. No. 1, at PageID# 11-13, 27, 30, 32.) As with Cashler, this alleged behavior all occurred prior to any disciplinary hearing and could have been grieved.

Even if any of these claims against Cashler or McClellan (or any other defendant for that matter) could be considered non-grievable as claims regarding issues directly related to the hearing process, that does not mean that Plaintiff's administrative remedies were exhausted. While decisions made in misconduct hearings are non-grievable, the proper avenue of appeal (as made clear to Plaintiff in regard to an improperly filed grievance against Minnerick) is, for a major misconduct, to submit a Request for Rehearing form to the Hearings Administrator in Lansing and, for a minor misconduct, to submit a Minor Misconduct Appeal to the ADW of Housing. (See Dkt. No, 19, Ex. Q, Step II GrievanceResp., at PageID# 263.) Plaintiff has provided no evidence of ever submitting either form with regard to his claims against Cashler and McClellan.¹ Moreover, even if Plaintiff had properly exhausted his administrative remedies against these two defendants, the Court finds Plaintiff's allegations against them to be frivolous and completely devoid of support. See 28 U.S.C. §§ 1915(e)(2) & 1915A; 42 U.S.C. § 1997e(c).

Relatedly, Plaintiff additionally alleges that Cashler, by presenting the "illegal" defense that Plaintiff never filed grievances regarding disciplinary matters, has "pleaded himself guilty." There is no such rule of law, and Cashler has not pleaded guilty by filing the defense of failure to exhaust administrative remedies.

ii. Defendant Gibson

Plaintiff objects to the fact that the Magistrate Judge "chose to ignore" the fact that Plaintiff did file grievances against Defendant Gibson. Plaintiff has failed to provide any evidence that he did indeed file grievances naming Gibson. Moreover, even if Plaintiff did file such grievances, he concedes that they were rejected as untimely and/or in violation of MDOC policy. (Dkt. No.62, Attach. 1, at PageID# 481.) "Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules." Woodford v. Ngo, 548 U.S. 81, 90 (2006).

iii. Defendant Jackson

Next, Plaintiff argues that footnote four in the Court's February 22, 2012, order (Dkt. No. 7, at 13 n.4), which stated that Defendant Jackson was entitled to immunity, was mistakenly entered. This footnote was not included in error. Instead, the footnote correctly stated that Jackson was entitled to absolute judicial immunity from monetary damages for his actions taken in his capacity as a hearings officer. See Shelly v. Johnson, 849 F.2d 228, 230 (6th Cir. 1988). As for Plaintiff's claim against Jackson for non-monetary damages - the claim seeking declaratory relief on his retaliation claim - the opinion stated that service on Jackson for that claim was warranted. (Dkt. No. 7, at 13.) Thus, the R&R was not in error when it explained that Plaintiff's claims against Jackson, other than the claim for declaratory relief, were dismissed on February 22. (Dkt. No. 59, at 2 n.1 .)

Plaintiff next contends that Jackson's "secondary" defense of mootness for the non-monetary claim could only be accepted by the Court if Plaintiff was seeking injunctive relief against Jackson. This argument is nonsensical. Plaintiff is no longer at the same facility as Jackson, and the Sixth Circuit has repeatedly held that claims against prison officials for both injunctive relief and declaratory relief are moot if the inmate is no longer at the facility where the alleged wrongdoing occurred. Colvin v. Caruso, 605 F.3d 282, 289 (6th Cir. 2010) ("This leaves Colvin's requests for declaratory and injunctive relief. But these forms of relief are moot because Colvin's requests were directed specifically at LMF's policies and procedures and were not targeted at the MDOC kosher-meal program as a whole."); Dellis v. Corr. Corp. of Am., 257 F.3d 508, 510 n.1 (6th Cir. 2001) ("We note that Plaintiff alsorequested injunctive and declaratory relief in his complaint; however, because he is no longer incarcerated in either Hardeman County Correctional Facility or Whiteville Correctional Facility, these prayers for relief are moot."); Kensu v. Haigh, 87 F.3d 172, 175 (6th Cir. 1996) ("However, to the extent Kensu seeks declaratory and injunctive relief his claims are now moot as he is no longer confined to the institution that searched his mail."). Thus, there was no error.

Then, contradicting his previous arguments and his complaint, Plaintiff argues that he has never asked for declaratory relief. Plaintiff's complaint states: "I would like the court to issue a declaratory judgement [sic] stating that all the defendants deliberately and maliciously violated my constitutional rights, under color of law, as explained in my complaint." (Dkt....