King v. Caruso

• Decision Date: 19 March 2008
• Docket Number: Civil No. 07-11810.
• Parties: Cheryl KING, Plaintiff, v. Patricia CARUSO, Richard Stapleton, and Ann Baerwalde, Defendants.
• Court: U.S. District Court — Eastern District of Michigan

542 F.Supp.2d 703

Cheryl KING, Plaintiff, v. Patricia CARUSO, Richard Stapleton, and Ann Baerwalde, Defendants.

Civil No. 07-11810.

United States District Court, E.D. Michigan, Southern Division.

March 19, 2008.

COPYRIGHT MATERIAL OMITTED

Cheryl L. King, St Clair Shores, MI, pro se.

Christine M. Campbell, Michigan Dept. of Atty. Gen., Lansing, MI, for Defendants.

ORDER ADOPTING REPORT AND RECOMMENDATION AND GRANTING SUMMARY JUDGMENT

FEIKENS, District Judge.

Presently before the Court is the report and recommendation issued on January 18 2008 by Magistrate Judge Steven D. Pepe, recommending that I grant summary judgment to the Defendants in this matter. On January 28, 2008, Plaintiff Cheryl King (King) filed timely objections. There is no response to King's objections, and the time for doing so has elapsed. Having reviewed the briefs, the court concludes that a hearing is unnecessary. See E.D. Mich. LR 7.1(e)(2). For the reasons stated below, the court will deny Petitioner's objections, adopt the report and recommendation, and GRANT summary judgment.

I. STANDARD OF REVIEW

When timely objections are made, the Court is required to make de novo review and determinations of those portions of the report and recommendation to which objections were made. 28 U.S.C. § 636(b) (1); United States v. Walters, 638 F.2d 947 (6th Cir.1981). De novo review requires this Court to reexamine the evidence brought before the magistrate to determine whether the report and recommendation should be accepted, denied, or modified. 28 U.S.C. § 636(b)(1).

General objections, or those objections that restate arguments made before the magistrate are not sufficient to alert the Court to alleged errors made by the magistrate judge. In other words, if the "objection" merely states a disagreement with the magistrate's suggested resolution or summarizes what was brought before the magistrate, it is not an objection for the purposes of this review. Howard v. Secretary of Health and Human Services, 932 F.2d 505, 508 (6th Cir.1991) (holding, where objection was to entirety of report and recommendation, that "it is arguable in this case that Howard's counsel did not file objections at all ... [I]t is hard to see how a district court reading [the `objections'] would know what Howard thought the magistrate had done wrong").

II. DISCUSSION

At the outset, I note that the report and recommendation is thorough and well reasoned. However, in Plaintiff King's objections, she contends that the magistrate erred in several respects: (1) the magistrate improperly recommended summary judgment when he weighed evidence prior to discovery; (2) the magistrate violated state and federal rules of statutory interpretation and judicial application; (3) Defendant Baerwalde is an Administrative Law Judge who acted outside her authority and is not entitled to immunity; and (4) her First Amendment right of freedom of association was violated when her visitation rights were withdrawn "de facto."

After reviewing each objection, I am compelled to DENY them. Plaintiffs "objections" are objections only because she has labeled them as such. In truth, the "objections" merely restate Plaintiff King's arguments before the magistrate and fail to meet the minimum requirements set forth in the Howard case. Howard, 932 F.2d at 508. An independent review of the report and recommendation reveals no errors, substantive or otherwise, that would call into question the ultimate recommendation of the magistrate judge: that Defendants' summary judgment motion should be granted and the case dismissed. The court is confident, according to its de novo review of the report and recommendation, that the report and recommendation is persuasive and should be adopted in full and incorporated by reference.

III. CONCLUSION

For the reasons stated above, I DENY Plaintiffs objections, and the magistrate's report and recommendation is ADOPTED in full and incorporated by reference. As such, I GRANT Defendants' Motion for Summary Judgment and DISMISS this case.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

PEPE, United States Magistrate Judge.

Plaintiff is a civilian whose husband, Kevin King, is under the jurisdiction of the Michigan Department of Corrections (MDOC) and is currently housed at Chippewa Correctional Facility. On April 26, Plaintiff filed a Complaint against Defendants Patricia Caruso, Director of MDOC, Richard Stapleton, Administrator at Office of Legal Affairs, and Ann Baerwalde, Administrative Law Examiner, claiming they have violated her First Amendment rights, her Equal Protection rights, and her Fourteenth Amendment Due Process rights. On June 27, 2007, Defendants Patricia Caruso, Richard Stapleton and Ann Baerwalde filed their motion for summary judgment under Fed.R.Civ.P. 56(b) arguing that Plaintiff has failed to show any genuine issue as to any material fact, and that they are entitled to judgement as a matter of law (Dkt.# 7). Defendants' motion was referred for report and recommendation on September 10, 2007, pursuant to 28 U.S.C. §§ 636(b)(1)(B) (Dkt.#13). For the reasons stated below, it is RECOMMENDED that Defendants' motion be GRANTED.

I. BACKGROUND FACTS

In February 2006, Internal Affairs began investigating Plaintiff and her husband, inmate King, after it received information from an informant, James Klein, that Plaintiff and her husband were planning, with the assistance of MDOC employees,¹ to smuggle a cell phone into the prison (Dkt.# 7, Ex. 13). On February 9, 2006, Plaintiff received notice of a proposed visitor restriction and that a hearing was to be held based on an accusation that Plaintiff and her husband were conspiring to smuggle a cell phone into the prison inside a cribbage board (Dkt.# 7, Ex. 3).² Plaintiff requested a hearing in accordance with Michigan's Administrative Procedure Act (APA) of 1969 (Cplt, ¶ 1). Yet, Plaintiff alleges that Defendants denied her request. Id.

On July 24, 2006, Defendant Baerwalde conducted a hearing, pursuant to MCL 791.251, in Plaintiffs absence. Plaintiff claims that she did not attend this hearing because she was not given notice of the date. Yet, an original notice of proposed visitor restriction was first presented to Plaintiff on February 9, 2006, and included a hearing date of March 15, 2006 (Dkt.# 7, Ex. 3). Plaintiff refused to sign the notice. Nevertheless, Defendant Baerwalde adjourned the hearing from March 15, 2006, because Plaintiff requested a waiver of time limits until the Michigan State Police Investigation had been completed (Dkt. # 7, Ex. 7; Cplt, Ex. C).

A notice of the July 24, 2006, hearing date was mailed to Plaintiff by Investigator Gunter on July 14, 2006 (Dkt.# 7, Ex. 8, p. 1), but Plaintiff claims she did not receive this notice. Defendant Baerwalde conducted a hearing on July 24, 2006, pursuant to MCL 791.251. The hearing was based on the allegations of smuggling in a cell phone, not weapons. At the hearing, Defendant Baerwalde found that Plaintiff had received notice of the hearing and thus the hearing was held without her in accordance with R791.3315.39. Plaintiff attaches to her Complaint the Administrative Hearing Report, which contains a finding by Defendant Baerwalde that Plaintiff had received written notice of the hearing and had chosen voluntarily not to attend (Cplt, Ex. C).

Plaintiff alleges that Defendants have violated her First Amendment rights, her Equal Protection rights, and her Fourteenth Amendment Due Process rights because the July 24, 2006, hearing was held outside of her presence, she was denied discovery or cross examination of witnesses or evidence, they refused to create any formal record or ask witnesses questions, and deemed the investigation and all material confidential (Cplt, ¶ 1).

Before the hearing held on July 24, 2006, Plaintiff requested copies of the Internal Affairs investigation pertaining to her husband, which was denied (Cplt, Ex. B). She attaches to her Complaint the MDOC Response to Freedom of Information Act ("FOIA") Appeal in which her request is denied. Defendant Caruso denied the FOIA appeal because the MDOC employee investigative files are personnel records and are exempt from disclosure. Id. MCL 791.230a prohibits the release of MDOC employees' personnel records.

Plaintiff submitted a request for a rehearing regarding the visitor restriction because she alleges that the hearing was conducted in her absence without notice that it had been rescheduled (Cplt, Ex. D). A rehearing was approved by Defendant Stapleton because Plaintiffs husband, Prisoner King, was not given notice of the prior hearing nor an opportunity to submit a statement to be considered by the hearing officer. Id. The rehearing was conducted on April 11, 2007, pursuant to R 791.3315 and R 791.6611, and the visitor restriction was upheld (Dkt.# 7, Ex. 4, Att.4-C). Plaintiff was present at this hearing, but claims that the rehearing also was in violation of her procedural due process safeguards.

Plaintiff now attacks the credibility of the informant, James Klein, whom both hearing officers found credible (Dkt. # 7, Ex. 4, Att. 4-A & 4-C). On June 19, 2007, Plaintiff conducted a deposition pursuant to MCR 2.306 and 2.315 on the informant, James Klein (Dkt.# 8, Ex. F). This deposition was held in conjunction with Plaintiffs and her husband's state court defamation lawsuit against Mr. Klein. Plaintiff states that Mr. Klein never sought confidential status from Defendants (Dkt.# 8, p. 2). In fact, Mr. Klein stated that he asked to have his record sealed (Dkt. # 8, Ex. F, Video Dep, 1:53:53). Plaintiff also states that Mr. Klein says he has a lying problem (Dkt.# 8, pp. 2-3). In the deposition Mr. Klein says that he once stated in court that in the past he used to have a problem lying (Dkt. # 8, Ex. F, Video Dep, 1:58:29). He stated that he has lied about "several things" in the past, but that his account of the actions between Plaintiff and himself was accurate (Dkt. #...