Ford v. Brown

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GEORGE FORD,

Plaintiff,

Case No. 22-CV-12368

vs.

HON. GEORGE CARAM STEEH

LARRY BROWN and

DEREK GOWDY,

Defendants.

_____________________________/

ORDER ADOPTING REPORT AND RECOMMENDATION

(ECF NO. 37), DENYING PLAINTIFF’S MOTION FOR SUMMARY

ENFORCEMENT OF SETTLEMENT AGREEMENT (ECF NO. 17) AND

GRANTING DEFENDANTS’ MOTION TO DISMISS (ECF NO. 14)

Plaintiff George Ford, a state prisoner who is proceeding in pro per,

filed the instant lawsuit against defendants Larry Brown and Derek Gowdy

to challenge his designation as a member of a security threat group

(“STG”). Plaintiff claims that defendants violated his rights under the First

and Fourteenth Amendment and seeks declaratory, injunctive, and

monetary relief. After the case was filed, a mediation conference took place

as part of the Pro Se Early Mediation Program, but the case failed to settle.

Defendants filed a motion to dismiss (ECF No. 14) and plaintiff filed a

motion for summary enforcement of a settlement agreement (ECF No. 17).

The motions were referred to the Magistrate Judge, who prepared a Report

and Recommendation (R&R) recommending that defendants’ motion be

granted and plaintiff’s motion be denied (ECF No. 37). The matter is before

the Court on plaintiff’s timely objections (ECF No. 41). For the reasons set

forth below, plaintiff’s objections are overruled and the R&R is adopted as

an order of the Court.

I. Standard of Review

When ruling on objections to an R&R, the court conducts a de novo

review of the portions of the R&R to which a party has filed specific

objections. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Smith v.

Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).

On the other hand, general objections, or ones that merely restate

arguments previously presented to the magistrate judge, are not valid

objections and are “tantamount to a complete failure to object.” Cole v.

Yukins, 7 F. App'x 354, 356 (6th Cir. 2001).

II. Background

After plaintiff filed his complaint, the case was stayed and referred to

the Pro Se Early Mediation Program. Assistant Attorney General Austin

Raines entered a limited appearance, representing defendants for the

limited purpose of participating in the Early Mediation Program (ECF No.

7). A mediation conference took place February 7, 2023. The case did not

settle, and the stay was lifted. On March 4, 2023, Raines was discontinued

from receiving ECF notifications. Assistant Attorney General Joshua

Marcum filed an appearance on behalf of defendants (ECF No. 13), as well

as a motion to dismiss (ECF No. 14), on April 25, 2023.

Plaintiff filed his motion for summary enforcement of the settlement

agreement on May 26, 2023 (ECF No. 17). In his motion, plaintiff states

that following the mediation, he and Attorney Raines participated in a

telephone conference on April 6, 2023. Plaintiff describes that he and

Raines “agreed that we would settle the case for $850 and the immediate[]

removal of my Security Threat Group (STG) designation.” (ECF No. 17,

PageID.94.) Plaintiff attached his sworn and notarized affidavit in support.

Plaintiff contends that after he and Raines verbally settled the case, he

waited for Raines to send him release and dismissal forms, which he never

received.

Defendants agree that plaintiff and Raines participated in an

additional settlement discussion on April 6, 2023, but assert that no

agreement was reached. (ECF No. 18, PageID.104-05). Raines submits his

own affidavit, averring that during the April discussion plaintiff conveyed his

settlement terms, which Raines indicated he would relay to the Michigan

Department of Corrections (“MDOC”) for consideration. Id. at PageID.109.

The MDOC did not agree to the terms, and thus Raines states that there

was no agreement to the essential terms of a settlement. Id.

Presented with conflicting affidavits, the Magistrate Judge conducted

an evidentiary hearing on December 20, 2023. The Magistrate Judge

granted plaintiff’s motion to produce two of his fellow prisoners as

witnesses to his understanding that a settlement had been reached (ECF

NO 32). However, prior to the hearing, defendants stipulated that “it was

Plaintiff's belief (whether mistaken or not) that a settlement had been

reached during the April 6, 2023 teleconference for $850 and the removal

of the Security Threat Group designation.” (ECF No.35, PageID.208).

Based on the stipulation, the Magistrate Judge determined that plaintiff’s

subjective belief was not contested and identified the sole disputed issue

as whether the parties actually and mutually reached an agreement with

respect to the material terms of a settlement. The Magistrate Judge

cancelled the writs for plaintiff’s witnesses’ testimony the day before the

hearing because their testimony was no longer relevant to the only

remaining disputed issue.

III. Objections One and Two

Plaintiff’s first two objections relate to the cancellation of his two

witnesses the day before the evidentiary hearing. In Objection One, plaintiff

asserts that the Magistrate Judge inappropriately participated in the case

by directing defendants how to advocate their case. Specifically, the

Magistrate Judge’s order granting plaintiff’s motion to produce witnesses

contained the caveat that the writs would be cancelled if “Defendants file a

Notice stating that Defendants do not contest that it was Plaintiff's belief

(whether mistaken or not) that a settlement had been reached during the

April 6, 2023 teleconference for $850 and the removal of the Security

Threat Group designation. If no such notice is filed, the witnesses will be

allowed to testify pursuant to Fed. R. Evid. 803(1).” (ECF No. 32).

Defendants then filed a notice that contained the exact statement, as

directed by the Magistrate Judge (ECF No. 35).

When a judge suggests ways for the parties to resolve issues in

litigation, he is not engaging in advocacy, but rather encouraging docket

efficiency. Plaintiff’s witnesses were being called to testify in support of

plaintiff’s position that he believed a settlement had been reached as well

as the terms of the settlement. The Magistrate Judge’s suggested

stipulation resulted in plaintiff’s subjective belief no longer being a disputed

issue. Plaintiff was alleviated of the burden of proving one of the required

elements of his claim and he suffered no prejudice as a result of the judge

suggesting the stipulation.

In Objection Two, plaintiff objects to the exclusion of his witnesses

under Federal Rule of Evidence 803(1), which is the hearsay exception for

present sense impressions. This is the evidentiary rule that would have

allowed plaintiff’s witnesses to testify to his subjective belief regarding the

terms of the settlement because they witnessed his response during or

immediately following his phone call with Attorney Raines. The rule was not

applied to exclude the witnesses from testifying.

Plaintiff’s first two objections are overruled.

IV. Objection Three

Plaintiff next contends the Magistrate Judge applied the wrong

standard to the motion to enforce settlement agreement. The Sixth Circuit

has held that “[t]he power of a trial court to enter a judgment enforcing a

settlement agreement has its basis in the policy favoring the settlement of

disputes and the avoidance of costly and time-consuming litigation.”

Therma-Scan, Inc. v. Thermoscan, Inc., 217 F.3d 414, 419 (6th Cir. 2000)

(citations omitted)). Importantly, “[b]efore enforcing settlement, the district

court must conclude that agreement has been reached on all material

terms.” Id. (citing Brock v. Scheuner Corp., 841 F.2d 151, 154 (6th

Cir.1988). Contrary to plaintiff’s objection, a settlement agreement is a

judgment by consent and a court’s authority for entry of final judgment

incorporating the terms of a settlement agreement is not governed by the

summary judgment standard. Kukla v. Nat'l Distillers Prod. Co., 483 F.2d

619, 621 (6th Cir. 1973).

Settlement agreements are governed by contract law. Before a

contract can be completed, there must be an offer and acceptance.

Pakideh v. Franklin Commercial Mortgage Group, Inc., 213 Mich. App. 636,

640 (Mich. Ct. App. 1995). Unless an acceptance is unambiguous and in

strict conformance with the offer, no contract is formed. Id. Further, a

contract requires mutual assent or a meeting of the minds on all essential

terms. Burkhardt v. Bailey, 260 Mich. App. 636, 655 (Mich. Ct. App. 2004).

In considering the evidence, the Magistrate Judge found it significant

that Raines did not prepare and send documents to plaintiff following their

phone conference. Instead, he sent an email conveying the terms of

plaintiff’s counteroffer to Castillo, who everyone agreed operated as the

client representative and had to approve any settlement. Based on these

facts, the Magistrate Judge concluded that the parties had not reached a

mutual agreement to settle the case on all material terms. Reviewing this

portion of the R&R de novo, the court finds that there was not a meeting of

the minds on all the essential terms, therefore a settlement agreement was

not reached. Plaintiff’s objection is overruled.

V. Objection Four

Plaintiff objects that the Magistrate Judge misconstrued his argument

that he has a First Amendment right against retaliation for receiving legal

money transfers from friends and family. A plaintiff must establish three

elements to assert a First Amendment retaliation claim: (1) he was

engaged in protected conduct; (2) an adverse action was taken against him

that would deter a person of ordinary firmness from engaging in that

conduct; and (3) the adverse action was motivated, at least in part, by the

protected conduct. Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.

1999) (en banc). The Magistrate Judge correctly found that plaintiff could

not establish the first element because receiving money is not protected

activity. Therefore, plaintiff is unable to state a First Amendment retaliation

claim based on his receipt of money from friends and family. This objection

is overruled.

VI. Objection Five

Plaintiff seeks to clarify that he is not making a separate facial

challenge to the MDOC Policy Directives, but rather he challenges how the

Policy Directives were applied to him in his Fourteenth Amendment

retaliation claim. He objects to the Magistrate Judge’s recommendation

that, to the extent the complaint asserts a violation of MDOC policy, it

should be dismissed for failure to state a claim upon which relief may be

granted under § 1983. The court takes notice that plaintiff disavows

bringing a cause of action for a violation of policy directives.

VII. Objection Six

Lastly, plaintiff objects to the Magistrate Judge’s conclusion that

defendants are entitled to sovereign immunity. In support of his objection,

he refers to his response to defendants’ motion to dismiss but fails to point

out any specific error in the R&R. See Cole v. Yukins, 7 F. App'x 354, 356

(6th Cir. 2001) (“The filing of vague, general, or conclusory objections does

not meet the requirement of specific objections and is tantamount to a

complete failure to object.”); Spencer v. Bouchard, 449 F.3d 721, 725 (6th

Cir. 2006) (“[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.” (quotation omitted)).

VIII. Conclusion

The court ADOPTS the Magistrate Judge’s recommendations (ECF

No. 37).

IT IS HEREY ORDERED that plaintiff’s motion for summary

enforcement of settlement agreement (ECF No. 17) is DENIED.

IT IS HEREBY FURTHER ORDERED that defendants’ motion to

dismiss (ECF No. 14) is GRANTED.

Dated: March 27, 2024

s/George Caram Steeh

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record

on March 27, 2024, by electronic and/or ordinary mail and

also on George Daniel Ford #158819, Lakeland

Correctional Facility, 141 First Street,

Coldwater, MI 49036

s/Lashawn Saulsberry

Deputy Clerk