Opinion
File No: 1:09-cv-1059.
May 3, 2011
OPINION
Before the Court are Plaintiff's objections (Dkt. No. 65) to Magistrate Judge Joseph Scoville's March 28, 2011, Report and Recommendation ("R R") (Dkt. No. 64). The Court is required to review de novo those portions of the R R to which specific objections are made. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). The Court may accept, reject, or modify any or all of the Magistrate Judge's findings or recommendations. Id. Plaintiff has raised nine numbered objections to the R R.
Objections One and Five
In his first objection, Plaintiff objects to the R R's assertion that Plaintiff "was unsuccessful in his . . . attempts to have his statement suppressed in the criminal case." (R R 6.) The statement at issue was made on November 30, 2007. Plaintiff argues that "the trial judge ruled that the November 30, 2007 statement could not be used in the prosecutor's case in chief." (Obj. 2.) The objection is apparently an objection to the Magistrate Judge's use of the word "suppressed." Plaintiff does not appear to disagree with the facts as they appear from the partial hearing transcript Plaintiff included with his Amended Complaint: namely, the trial judge ruled that the statements could not be used in the prosecutor's case-in-chief, but they could be used if Plaintiff took the stand. As the substance of the November 30 statements apparently did come into evidence when Plaintiff took the stand, ( see Am. Compl., Ex. 1, 06/19/08 Partial Hr'g Tr. 60-61, 75, 82), it is clear that the statements were not entirely prohibited, and thus were not suppressed. See Black's Law Dictionary (9th ed. 2009). Plaintiff's attempts to have them prohibited entirely were unsuccessful. ( See 06/19/08 Partial Hr'g Tr. 82.) The objection will be overruled.
Plaintiff's fifth objection pertains to the same statements, of which the R R states that Plaintiff "was not successful in his state-court efforts to attack the knowing and voluntary nature of [the statements]." (R R 12.) Plaintiff argues that "[t]he trial court did find that the statement was not free and voluntary." (Obj. 3.) This is incorrect. The trial court judge specifically stated that "I find . . . [a]nd I want the record to be clear, it was a voluntary statement." (06/19/08 Partial Hr'g Tr. 82.) The objection will be overruled.
Objection Two
In his second objection, Plaintiff objects to the R R's statement that Plaintiff "alleges that his family gave his `pain medication' to Lieutenant Andrea Martin on November 27, 2007." (R R 6.) Plaintiff contends that his allegation was that his family delivered to Lieutenant Martin a prescription for his pain medicine. (Obj. 2.) Plaintiff is correct. His allegation refers to the prescription, not the medication itself. (Dkt. No. 29, Am. Compl. ¶ 23.) The objection will be sustained.
Objections Three and Four
Objection Six
The R R's statement that "Plaintiff filed five grievances" appears to be simply a convenient shorthand introduction to the R R's brief review of the five grievances attached to the Amended Complaint. ( See R R 10-11.)
Objection Seven
In his seventh objection, Plaintiff objects to the R R's statement that "Plaintiff alleges . . . that he was physically and mentally dependant on [methadone]." (R R 20 (citing Am. Compl. ¶ 22).) Plaintiff points out that he in fact alleged that he was "physically and medically" dependant on methadone. (Am. Compl. ¶ 22; Obj. 4.) It does not appear to the Court that the Magistrate Judge was attempting to make any new or contrary finding, and though the distinction may be minor, Plaintiff is nonetheless correct about the nature of his allegation. The objection will be sustained.
Objection Eight
In his eighth objection, Plaintiff objects to the recommendation that "all claims involving plaintiff's criminal case, including challenges to the effectiveness of his counsel, his competency to stand trial, allegedly coercive interrogation, and the admissibility of his statements to police, be dismissed without prejudice." (R R 23.) Plaintiff argues that, other than an unintentional Sixth Amendment claim, he made no such claims. (Obj. 4-5.) That Plaintiff's claims may have been "unintentional" (or unrecognized) alters neither the Magistrate Judge's correct analysis of the issues nor his sound recommendation regarding those issues. The objection will be overruled.
Objection Nine
Other Matters
As answers have already been filed, the Court notes that Defendants' motions under Rule 12(b)(6) would properly have been filed and considered under Rule 12(c). However, the standards of review under the two rules are nearly identical, see Kottmyer v. Maas, 436 F.3d 684, 689 (6th Cir. 2006), and the Court finds that the R R's analysis holds good under either standard.