Frazier v. Kisor

ALVIN D. FRAZIER, Plaintiff, v. TIFFANY KISOR and MS. PURDY, Defendants.

No. 19-12419

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

August 5, 2021

OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION OVERRULING OBJECTIONS, AND DISMISSING COMPLAINT

DAVID M. LAWSON, United States District Judge

Plaintiff Alvin Dwayne Frazier is a Michigan prisoner serving a sentence for murder and a firearm offense. He filed a complaint in this case under 42 U.S.C. § 1983 against two corrections officials, whom he had sued in an earlier case alleging racial and religious discrimination and included a new claim for retaliation in violation of the First Amendment. The case was referred to Magistrate Judge Patricia T. Morris to conduct pretrial proceedings. Judge Morris screened the case as was required by the Prison Litigation Reform Act and filed a report recommending that this case be dismissed. The plaintiff filed objections and the matter is before the Court for fresh review. Because the plaintiff raised similar claims in a previous lawsuit against the defendants and his complaint otherwise fails to state a cognizable claim, the Court will adopt the recommendation and dismiss the case.

I.

Frazier is a Michigan prisoner confined at the Michigan Department of Corrections (MDOC) G. Robert Cotton Correctional Facility in Jackson, Michigan. He filed the present lawsuit on August 16 2019 against deputy warden Tiffany Kisor and corrections official “Ms. Purdy, ” alleging that (1) he was denied a job opportunity because of an assault misconduct ticket he received after fighting another inmate; (2) racist remarks were directed at him (although it is unclear by whom), which were later ignored by the administration; (3) defendant Purdy was in charge of delegating work assignments and instructed defendant Kisor to not assign jobs to the plaintiff; and (4) the plaintiff was the victim of several physical attacks from other inmates, allegedly coordinated by the defendants, that were intended to inhibit his performance in college classes. Frazier alleged that he was discriminated against due to his past criminal convictions, his race, and his religious practice. He also alleged that the defendants embarked on a “campaign[] of harassment[]” against him in retaliation for his decision to file a previous lawsuit.

Frazier had filed the previously referenced lawsuit on February 7, 2019, against 35 MDOC employees, including the two defendants in this case. The Court partially dismissed the complaint with prejudice on July 8, 2019, because Frazier failed to prove personal involvement for all but two other named defendants. The dismissal included Frazier's claims against defendants Unknown Purdy and Tiffany Kisor. Frazier v. Lindsey, No. 19-10389, 2019 WL 2996170 (E.D. Mich. July 8, 2019).

Magistrate Judge Morris screened the case and issued a report recommending that the Court dismiss Frazier's complaint because his racial discrimination claims against both defendants are barred by res judicata, and he failed to state a claim for which relief can be granted as to his other allegations.

Frazier raised four objections to the recommendation.

II.

The filing of timely objections to a report and recommendation requires the court to “make a de novo determination of those portions of the report or specified findings or recommendations -2- to which objection is made.” 28 U.S.C. § 636(b)(1); see also United States v. Raddatz, 447 U.S. 667 (1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This fresh review requires the court to re-examine all of the relevant evidence previously reviewed by the magistrate judge in order to determine whether the recommendation should be accepted, rejected, or modified in whole or in part. 28 U.S.C. § 636(b)(1).

This review is not plenary, however. “The filing of objections provides the district court with the opportunity to consider the specific contentions of the parties and to correct any errors immediately, ” Walters, 638 F.2d at 950, enabling the court “to focus attention on those issues - factual and legal - that are at the heart of the parties' dispute, ” Thomas v. Arn, 474 U.S. 140, 147 (1985). As a result, “‘[o]nly those specific objections to the magistrate's report made to the district court will be preserved for appellate review; making some objections but failing to raise others will not preserve all the objections a party may have.'” McClanahan v. Comm'r of Soc. Sec., 474 F.3d 830, 837 (6th Cir. 2006) (quoting Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987)).

The Sixth Circuit has stated that “[o]verly general objections do not satisfy the objection requirement.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006). “The objections must be clear enough to enable the district court to discern those issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). “‘[O]bjections disput[ing] the correctness of the magistrate's recommendation but fail[ing] to specify the findings . . . believed [to be] in error' are too general.” Spencer, 449 F.3d at 725 (quoting Miller, 50 F.3d at 380). “[T]he failure to file specific objections to a magistrate's report constitutes a waiver of those objections.” Cowherd v. Million, 380 F.3d 909, 912 (6th Cir. 2004).

The plaintiff has been granted pauper status at his request, and the initial payment of filing fees has been waived. When a plaintiff asks the Court to waive fees and costs because he cannot afford to pay them, the Court must screen the case for merit. The Prison Litigation Reform Act (PLRA) requires the Court to dismiss a prisoner's complaint before service on a defendant if it determines that the action is frivolous or malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief against a defendant who is immune from such relief. 42 U.S.C. § 1997(e)(c); 28 U.S.C. § 1915(e)(2)(B). The same screening is required when the complaint seeks redress against government entities, officers, and employees. 28 U.S.C. § 1915A. A complaint is frivolous if it lacks an arguable basis either in law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 319, 325 (1989).

A complaint filed by an unrepresented party is to be construed liberally. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). However, Federal Rule of Civil Procedure 8(a) requires that all complaints must set forth “a short and plain statement of the claim showing that the pleader is entitled to relief, ” as well as “a demand for the relief sought.” Fed.R.Civ.P. 8(a)(2), (3). The purpose of this rule is to “give the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957) and Fed.R.Civ.P. 8(a)(2)). This notice pleading standard does require not require detailed factual allegations, but it does require more than the bare assertion of legal conclusions. Twombly, 550 U.S. at 555. Rule 8 “demands more than an unadorned, the defendant-unlawfully-harmed me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.'” Id. (quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (quoting Twombly, 550 U.S. at 557). “Factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555-56 (citations and footnote omitted).

To state a federal civil rights claim, the plaintiff must allege that: (1) he was deprived of a right, privilege, or immunity secured by the federal Constitution or laws of the United States; and (2) the deprivation was caused by a person acting under color of state or federal law. Flagg Bros. v. Brooks, 436 U.S. 149, 155-57 (1978); Harris v. Circleville, 583 F.3d 356, 364 (6th Cir. 2009). Additionally, the plaintiff must allege that the deprivation of his rights was intentional, not merely negligent. Davidson v. Cannon, 474 U.S. 344, 348 (1986); Daniels v. Williams, 474 U.S. 327, 333-36 (1986).

A.

In his first objection, Frazier generally disagrees that his claim is barred by res judicata. He believes that his current claim arises out of conduct that is distinct from that raised in his initial claim, and that it would be “judicial abuse” for the Court to dismiss his claim.

Under the doctrine of res judicata, “a final judgment on the merits of an action precludes the parties or their privies from relitigating issues that were or could have been raised in that action.” Allen v. McCurry, 449 U.S. 90, 94 (1980). “It discourages multiple lawsuits directed toward the same alleged wrong.” Larry v. Powerski, 148 F.Supp.3d 584, 593 (E.D. Mich. 2015). The doctrine embraces two separate concepts - claim preclusion and issue preclusion. “Claim preclusion, or true res judicata, refers to [the] effect of a prior judgment in foreclosing a subsequent claim that has never been litigated, because of a determination that it should have been advanced in an earlier action. Issue preclusion, [or collateral estoppel, ] on the other hand, refers to the foreclosure of an issue previously litigated.” Mitchell v. Chapman, 343 F.3d 811, 819 n. 5 (6th Cir. 2003).

The Court's dismissal of Frazier's initial discrimination claims against defendants Kisor and Purdy in Frazier v Lindsey, No. 19-10389, 2019 WL 2996170, at *6, constituted a final decision on the merits as to those defendants. See ...