Petition for Writ of Certiorari — Donald Lee Kissner, Petitioner v. Joseph Michael Orr, et al.

No Shepard’s Signal™

As of: October 11,2023 11:01 PM Z

Kissner v. Orr

United States Court of Appeals for the Sixth Circuit

October 10, 2023, Filed

No. 22-2076

Reporter

2023 U.S. App. LEXIS 26886 *

DONALD LEE KISSNER, Plaintiff-Appellant, v.

OFFICER JOSEPH MICHAEL ORR, ET AL„

Defendants-Appellees.

Core Terms

petition for rehearing, en banc

Counsel: [*1] DONALD LEE KISSNER, PlaintiffAppellant, Pro se, Macomb Correctional Facility, Lenox

Township, Ml.

For OFFICER JOSEPH MICHAEL ORR, OFFICER

LUKE ROGERS, Defendant - Appellees: Joanne G.

Swanson, Kevin Andrew McQuillan, Kerr, Russell &

Weber, Detroit, Ml.

Judges: BEFORE: SUHRHEINRICH, GIBBONS, and

MATHIS, Circuit Judges.

Opinion

ORDER

The court received a petition for rehearing en banc. The

original panel has reviewed the petition for rehearing

and concludes that the issues raised in the petition were

fully considered upon the original submission and

decision of the case. The petition then was circulated to

the full court.* No judge has requested a vote on the

suggestion for rehearing en banc.

Therefore, the petition is denied.

End of Document

‘Judge Davis recused herself from participation in this ruling.

© Neutral

As of: October 11,2023 10:59 PM Z

Kissner v. Orr

United States Court of Appeals for the Sixth Circuit

August 31,2023, Filed

No. 22-2076

Reporter

2023 U.S. App. LEXIS 23274 *; 2023 WL 5687037

DONALD LEE KISSNER, Plaintiff-Appellant, v.

OFFICER JOSEPH MICHAEL ORR, et al., DefendantsAppellees.

Notice: CONSULT 6TH CIR. R. 32.1 FOR CITATION

OF UNPUBLISHED OPINIONS AND DECISIONS.

Prior History: [*1] ON APPEAL FROM THE UNITED

STATES DISTRICT COURT FOR THE EASTERN

DISTRICT OF MICHIGAN.

Kissner v. Orr. 2022 U.S. Dist. LEXIS 208745. 2022 WL

17069559 ( E.D. Mich.. Nov. 17. 2022)

Core Terms

district court, qualified immunity, police officer, dispatch,

report and recommendation, motion to dismiss,

recommended, immunity, magistrate judge, allegations,

amended judgment, rights

Counsel: DONALD LEE KISSNER, Plaintiff - Appellant,

Pro se, Lenox Township, Ml.

For OFFICER JOSEPH MICHAEL ORR, OFFICER

LUKE ROGERS, Defendant - Appellee: Joanne G.

Swanson, Kevin Andrew McQuillan, Kerr, Russell &

Weber, Detroit, Ml.

Judges: Before: SUHRHEINRICH, GIBBONS, and

MATHIS, Circuit Judges.

Opinion

ORDER

Donald Lee Kissner, a Michigan prisoner proceeding pro

se, appeals the district court's amended judgment

entered in accordance with its order granting in part and

denying in part his motion for relief from judgment under

Federal Rule of Civil Procedure 60{b). This case has

been referred to a panel of the court that, upon

examination, unanimously agrees that oral argument is

not needed. See Fed. R. App. P. 34(a). As set forth

below, we affirm in part and vacate in part the district

court's amended judgment and remand for further

proceedings consistent with this order.

Kissner filed a complaint against Officers Joseph

Michael Orr and Luke Rogers of the Durand Police

Department,

an

unknown dispatch officer for

Shiawassee County (with "Chris Brown Prosecutor"

named as the "answering" defendant), and Dr. Jeremy

Zarski, generally claiming that they violated his

constitutional rights [*2] and neglected their duties.

Kissner alleged that, on August 20, 2020, he "was

drugged and attempted to set [himjself on fire naked."

After 911 was called, Officers Orr and Rogers

responded and confirmed that Kissner was suicidal.

Kissner alleged that neither the dispatch officer nor the

police officers called emergency medical services.

According to Kissner, the police officers placed him in a

patrol car, where he sat, "covered from his head to his

toes in lighter fluid,” for an hour and 40 minutes. Kissner

alleged that Officers Orr and Rogers later "attempted

[to] pass" him onto the Shiawassee County Sheriffs

Department, which declined to take him "until he was

medically cleared." The police officers then transported

Kissner to Owosso Memorial Hospital, where Dr. Zarski

examined him. According to Kissner, Officers Orr and

Rogers, the dispatch officer, and Dr. Zarski all knew that

he was covered in lighter fluid, yet no one cleaned him

up for several hours. Because of that neglect, Kissner

alleged, he ended up with first-through fourth-degree

chemical burns on his body and has scars on his

genitals, belly, head, and underarms from those burns.

A magistrate judge allowed Kissner to [*3] proceed in

forma pauperis and ordered service of the complaint.

Officers Orr and Rogers filed a motion to dismiss under

Rule 12(b)(6). while Dr. Zarski filed a motion for

summary judgment under Rule 56. The magistrate

Page 2 of 4

2023 U.S. App. LEXIS 23274, *3

judge recommended that the district court grant Officers

Orr and Rogers's motion to dismiss, concluding that the

police officers were entitled to qualified immunity

because Kissner had failed to plead a plausible

constitutional claim against them and that, to the extent

that Kissner asserted a state-law negligence claim

against the police officers, they were entitled to

immunity under Michigan's involuntary-commitment

statutes. With respect to Dr. Zarski's motion for

summary judgment, the magistrate judge recommended

that the district court grant the motion on the basis that

the doctor was not a state actor; Kissner did not object

to that recommendation. Kissner did file objections to

the magistrate judge’s recommendation regarding the

police officers' motion to dismiss but only general ones.

The district court adopted the magistrate judge's

recommendations, concluding that Kissner had waived

any objections, and granted the defendants' motions.

The district court entered a judgment dismissing [*4]

Kissner's complaint with prejudice.

Kissner did not appeal the district court's judgment.

Instead, over four months later, Kissner filed a motion

for relief from judgment under Rule 60(b). Kissner

argued that Shiawassee County Prosecutor Chris E.

Brown never answered or otherwise responded to the

allegations against him in this civil rights action and that

the district court never ruled on those allegations or on

Brown's failure to respond to them. Kissner also

asserted that Officers Orr and Rogers were not entitled

to qualified immunity because they were not performing

discretionary functions as first responders to a 911 call

about a suicidal person. Finally, Kissner asked the

district court to reopen his civil rights action and reissue

its judgment to allow him to file a timely notice of appeal,

asserting that an outbreak of COVID-19 at his prison

had prevented him from using the law library and

obtaining the items needed to file an appeal.

The district court granted in part and denied in part

Kissner's Rule 60(b) motion. Vacating its original

judgment, the district court concluded that it made a

mistake ip prematurely entering a judgment without

addressing any claims against Brown. The district

court [*5] went on to summarily dismiss Kissner's

claims against Brown based on prosecutorial immunity.

See 28 U.S.C. 8 1915(e)(2). As for Officers Orr and

Rogers, the district court determined that Kissner had

failed to demonstrate entitlement to relief from judgment

under Rule 60(b). The district court entered an amended

judgment dismissing Kissner's complaint with prejudice.

Kissner timely appealed the district court's amended

judgment. Upon the parties' stipulation, we terminated

Dr. Zarski as a party to this appeal. Kissner v. Orr, No.

22-2076 (6th Cir. Feb. 21,2023).

Kissner argues on appeal that, in ruling on his Rule

60(b) motion, the district court failed to address his

request for reissuance of its original judgment to allow

him to file a timely notice of appeal. But reissuance of

the district court's original judgment was unnecessary.

We have jurisdiction over appeals from final decisions of

the district courts. 28 U.S.C. 6 1291. A decision is final if

it "ends the litigation on the merits and leaves nothing

for the [district] court to do but execute the judgment."

Catlin v. United States. 324 U.S. 229. 233, 65 S. Ct.

631, 89 L. Ed. 911 (1945). In the absence of certification

for an interlocutory appeal under Federal Rule of Civil

Procedure 54(b). a decision "disposing of fewer than all

claims in a civil action is not immediately appealable."

Adler v. Elk Glenn. LLC. 758 F.3d 737. 739 (6th Cir.

2014). Because the district court's original judgment did

not dispose [*6] of Kissner’s claims against Brown, it

was not a final decision and therefore was not ripe for

appeal. See Witherspoon v. White. 111 F.3d 399. 402

(5th Cir. 1997) ("[W]hen the record clearly indicates that

the district court failed to adjudicate the rights and

liabilities of all parties, the order is not and cannot be

presumed to be final, irrespective of the district court's

intent.").

To the extent that Kissner challenges the district court's

order granting Officers Orr and Rogers’s motion to

dismiss, he has forfeited appellate review of that

decision. A party who does not file timely and specific

objections to a magistrate judge's report and

recommendation, after being advised to do so, forfeits

the right to appeal. Thomas v. Am. 474 U.S. 140. 155,

106 S. Ct. 466. 88 L. Ed. 2d 435 (1985): Berkshire v.

Dahl. 928 F.3d 520. 530-31 (6th Cir. 2019): Miller v.

Currie. 50 F.3d 373. 380 (6th Cir. 1995). "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." Cole v. Yukins, 7 F.

Add'x 354. 356 (6th Cir. 2001). Here, the magistrate

judge recommended that the district court grant the

police officers' motion to dismiss. In the report and

recommendation, the magistrate judge advised Kissner

that he had 14 days to file specific written objections

and that failure to file specific objections constituted a

waiver of any further right of appeal. Kissner's

objections to the [*7] magistrate judge's report and

recommendation consisted of the following blanket

statements: (1) the motion "should not be granted," (2)

"Qualified Immunity should not apply," and (3)

Page 3 of 4

2023 U.S. App. LEXIS 23274, *7

"Governmental Immunity should not apply." The district

court concluded that Kissner's general objections had

"the same effect^ as ... a failure to object" and that he

had therefore waived any objection to the magistrate

judge's report and recommendation. See Howard v.

Secretary of HHS. 932 F.2d 505. 509 (6th Cir. 1991).

Kissner's blanket statements that the motion should not

be granted and that qualified and governmental

immunity do not apply are conclusory objections, not the

required specific objections. See Cole. 7 F. Add'x at

356; Martin v. LaBelle. 7 F. Add'x 492. 494 (6th Cir.

2001) (holding that objections consisting of "general

legal standards and conclusory statements that plaintiffs

met those standards" are insufficiently specific). By

failing to object with specificity to the magistrate judge's

report and recommendation, Kissner forfeited appellate

review of the district court's order granting Officers Orr

and Rogers's motion to dismiss. See Howard. 932 F.2d

at 508-09. Although this forfeiture rule is nonjurisdictional and may be excused "in the interests of

justice," Thomas. 474 U.S. at 155. the circumstances of

Kissner's case do not warrant an exception from the

general [*8] rule. See Carter v. Mitchell. 829 F.3d 455.

472 (6th Cir. 2016) (citations omitted) (noting that we

have excused forfeiture when a case is "exceptional,"

when hearing the issue serves a purpose beyond

"simply reaching the correct result," and when the issue

requires no additional factual development).

We review the district court's denial of Kissner's Rule

60(b) motion for relief from its judgment in favor of

Officers Orr and Rogers for an abuse of discretion. See

Yeschick v. Mineta. 675 F.3d 622, 628 (6th Cir. 2012).

"An abuse of discretion exists when a court 'commits a

clear error of judgment, such as applying the incorrect

legal standard, misapplying the correct legal standard,

or relying upon clearly erroneous findings of fact.'" Id.

(quoting In re Ferro Coro. Derivative Litig., 511 F.3d

611. 623 (6th Cir. 2008)). In reviewing the district court's

denial of Rule 60(b) relief, we do not review the

underlying decision—the dismissal of Kissner's claims

against Officers Orr and Rogers. See Feathers v.

Chevron U.S.A.. Inc.. 141 F.3d 264. 268 (6th Cir. 1998).

Our inquiry is limited to whether one of the

circumstances specified in Rule 60(b) "exists in which

[Kissner] is entitled to reopen the merits of his

underlying claims." Id.

In his Rule 60(b) motion, Kissner argued that Officers

Orr and Rogers were not entitled to qualified immunity

because they were not performing discretionary

functions as first responders to a 911 call about a

suicidal person. Under the [*9] doctrine of qualified

immunity, "government officials performing discretionary

functions generally are shielded from liability for civil

damages insofar as their conduct does not violate

clearly established statutory or constitutional rights of

which a reasonable person would have known." Harlow

v. Fitzgerald. 457 U.S. 800. 818. 102 S. Ct. 2727. 73 L.

Ed. 2d 396 (1982). "[0]nly officials performing

discretionary, as opposed to ministerial, functions^ are

entitled to qualified immunity." Perez v. Oakland County,

466 F.3d 416. 429 (6th Cir. 2006).

Courts use a two-part test to determine whether a

government official is entitled to qualified immunity: "(1)

whether the alleged facts, viewed in the light most

favorable to the plaintiff, show that the official's conduct

violated a constitutional right, and (2) whether that

constitutional right was 'clearly established.'" Rieves v. Town of Smyrna, 959 F.3d 678. 695 (6th Cir. 2020)

(citing Saucier v. Katz. 533 U.S. 194. 201. 121 S. Ct.

2151. 150 L. Ed. 2d 272 (2001)). In recommending that

the district court grant Officers Orr and Rogers's motion

to dismiss, the magistrate judge determined that the

police officers were entitled to qualified immunity based

on the first part of that test—Kissner had failed to plead

a plausible constitutional claim against these

defendants. The district court adopted the magistrate

judge's report and recommendation and, without

mentioning

qualified

immunity,

discussed

the

magistrate [*10] judge's conclusion that Kissner's

allegations did not support a deliberate-indifference

claim against the police officers. In denying Kissner's

Rule 60(b) motion, the district court addressed Kissner's

discretionary-function argument, despite his failure to

object to the magistrate judge's report and

recommendation on this basis, and pointed out that this

argument had no bearing on its conclusion that he had

failed to establish a deliberate-indifference claim against

Officers Orr and Rogers. Because Kissner failed to

show that a circumstance specified under Rule 60(b)

warranted the reopening of his claims against Officers

Orr and Rogers, the district court did not abuse its

discretion in denying his motion for relief from its

judgment in favor of the police officers.

The district court granted Rule 60(b) relief to address

Kissner's allegations against Brown. According to

Kissner, the district court erred in ruling that Brown was

entitled to prosecutorial immunity. Kissner asserts that

he did not raise any claim about Brown bringing criminal

charges against him and that he instead named Brown

as the respondent for the dispatch officer because no

one would give him the dispatch officer's name and

Page 4 of 4

2023 U.S. App. LEXIS 23274, *10

address. Kissner[*11] is correct: his complaint listed

"Chris Brown Prosecutor answering unknown name

dispatch officer" and did not include any factual

allegations against Brown. Because Kissner apparently

did not intend to name Brown as a defendant in his

individual capacity, prosecutorial immunity did not apply.

See Cady v. Arenac County. 574 F.3d 334. 342 (6th Cir.

2009) (recognizing that absolute prosecutorial immunity

is a "personal defense").

Kissner apparently intended to sue the dispatch officer,

whose name he did not know. "Plaintiffs are permitted to

bring suit against unnamed 'John Doe' defendants until

discovery or other information reveals the identity of the

party." Brown v. Owens Corning Inv. Rev. Comm., 622

F.3d 564. 572 (6th Cir. 2010). abrogated on other

grounds by Intel Coro. Inv. Pol'v Comm, v. Sulvma. 140

S. Ct. 768. 206 L. Ed. 2d 103 (2020). Because the

district court did not address Kissner's allegations

against the unnamed dispatch officer, we will remand for

further proceedings.

Kissner raises other arguments and claims on appeal

that he did not raise before the district court. But we will

not review issues raised for the first time on appeal. See

Jolivette v. Husted. 694 F.3d 760. 770 (6th Cir. 2012).

For these reasons, we AFFIRM IN PART and VACATE

IN PART the district court's amended judgment and

REMAND for further proceedings consistent with this

order.

End of Document

Warning

As of: October 11, 2023 11:09 PM Z

Kissnerv. Orr

United States District Court for the Eastern District of Michigan, Southern Division

November 17, 2022, Decided; November 17, 2022, Filed

Civil Case No. 20-13445

Reporter

2022 U.S. Dist. LEXIS 208745 *; 2022 WL 17069559

DONALD LEE KISSNER, Plaintiff, v. JOSEPH

MICHAEL ORR, LUKE ROGERS, CHRIS BROWN, and

JEREMY ZARSKI, Defendants.

Subsequent History: Vacated by, in part, Affirmed by,

in part, Remanded by Kissnerv. Orr, 2023 U.S. Ado.

LEXIS 23274 (6th Cir. Mich.. Aua. 31. 2023)

Prior History: Kissnerv. Orr. 2021 U.S. Dist. LEXIS

242741. 2021 WL 5997976 ( E.D. Mich.. Dec. 20. 2021)

Core Terms

prosecutorial immunity, absolute immunity, initiating,

dispositive motion, qualified immunity, motion for relief,

enter a judgment, functions, civil commitment

proceeding, commitment proceeding, judicial

proceedings, civil rights action, vacate a judgment,

amended judgment, sua sponte, involuntary,

preparation, proceedings, summarily, asserts, charges,

enjoyed, Courts, immune

Counsel: [*1] Donald Lee Kissner, Plaintiff, Pro se,

Corunna, Ml.

For Joseph Michael Orr, officer, Luke Rogers, Oficer,

Defendants: James E. Tamm, Kerr, Russell, and Weber,

PLC, Detroit, Ml; Kevin Andrew McQuillan, Kerr, Russell

and Weber, PLC, Detroit, Ml.

For Jeremy Zarski, Dr., Defendant: Marcy R. Matson,

Hall Matson, PLC, East Lansing, Ml.

Judges: Honorable LINDA V. PARKER, UNITED

STATES DISTRICT JUDGE.

Opinion by: LINDA V. PARKER

Opinion

OPINION AND ORDER W GRANTING IN PART AND

DENYING IN PART PLAINTIFF'S MOTION FOR

RELIEF FROM JUDGMENT: fill VACATING

JUDGMENT: AND (III) SUA SPONTE DISMISSING

PLAINTIFF’S CLAIMS AGAINST DEFENDANT CHRIS

BROWN

After adopting Magistrate Judge Patricia Morris' two

reports and recommendations and granting the

dispositive motions filed by Defendants Joseph Michael

Orr, Luke Rogers, and Jeremy Zarski, this Court entered

a Judgment dismissing Plaintiffs Complaint with

prejudice. Plaintiff has filed a motion for relief from

judgment pursuant to Federal Rule of Civil Procedure

60(b). arguing that no dispositive motion was filed by

Defendant Chris Brown and that Defendants Orr and

Rogers were not entitled to qualified immunity.

The Court is granting in part and denying in part

Plaintiffs motion. Defendant Brown was not required to

respond [*2] to Plaintiffs Complaint, as the Court never

directed him to do so. See 28 U.S.C. § 1997e(g).

Nevertheless, it was premature for the Court to enter a

judgment without ever addressing any claim Plaintiff has

against this defendant. Thus, the Court made a

"mistake" when entering the Judgment when it did, see

Fed. R. Civ. P. 60(b)(1). and is vacating the Judgment

as relief from that mistake.

The Court is entering an amended judgment, however,

because the only conceivable allegations Plaintiff

asserts against Defendant Brown relate to his role as a

prosecutor. As such, he is entitled to prosecutorial

immunity. And the Court finds no basis for granting

Plaintiff relief from judgment with respect to his claims

against Defendants Orr and Rogers.

Except for listing Defendant Brown as the third

defendant being sued (ECF No. 1 at Pg ID 4), Plaintiff

does not mention him by name or in his role as a

prosecutor anywhere in the Complaint (see id. at Pg ID

1-9.) In a December 25, 2020 letter, which is attached to

Page 2 of 3

2022 U.S. Dist. LEXIS 208745, *2

the Complaint, Plaintiff refers only to the "Shiawassee

County Prosecutor's Office" and asserts that it is "only

concerned with charging [him] and not [his] suicide

attempt....” (Id. at Pg ID 12.)

The Supreme Court has observed that [*3] courts are

virtually unanimous in holding "that a prosecutor enjoys

absolute immunity from [42 U.S.C.l $ 1983 suits for

damages when [the prosecutor] acts within the scope of

his [or her] prosecutorial duties." Imbler v. Pachtman,

424 U.S. 409. 420. 96 S. Ct. 984. 47 L. Ed. 2d 128

(1976). A prosecutor is absolutely immune for "acts

undertaken ... in preparing for the initiation of judicial

proceedings or for trial, and which occur in the course of

[the prosecutor's] role as an advocate for the State."

Buckley v. Fitzsimmons. 509 U.S. 259. 273. 113 S. Ct.

2606, 125 L. Ed. 2d 209 (1993): see also Cooper v.

Parrish. 203 F.3d 937. 946-47 (6th Cir. 2000).

Prosecutorial immunity extends to "actions preliminary

to the initiation of a prosecution and actions apart from

the courtroom[.]” Buckley, 509 U.S. at 272 (quoting

Imbler. 424 U.S. at 431. n.33).

Nevertheless, prosecutorial immunity is not absolute. Id.

at 273. Prosecutorial immunity does not extend to

situations where "a prosecutor 'functions as an

administrator rather than as an officer of the court[.]”' Id.

(quoting Imbler. 424 U.S. at 431 n.22). For example, a

prosecutor is not immune when "performfing] the

investigative functions normally performed by a

detective or police officerf.]" Id. (quoting Hampton v.

Chicago. 484 F.2d 602. 608 (7th Cir. 1973)): see also

Cooper, 203 F.3d at 947.

Gleaned from Plaintiffs filings, the only conduct of

Defendant Brown—pursuing criminal charges against

Plaintiff—are actions intimately associated with judicial

proceedings. Courts have found prosecutors absolutely

immune from $ 1983 liability for [*4] such actions. See,

e.g., Imbler. 424 U.S. at 431 (prosecutorial immunity

applied to actions in initiating a prosecution and

presenting the State's case). Even if Defendant Brown

was somehow involved in the petition seeking mental

health treatment for Plaintiff, prosecutorial immunity has

been found to apply to such actions, as well. Scott v.

Hern. 216 F.3d 897. 909 (10th Cir. 2000) (state

prosecutor enjoyed absolute immunity for acts and

omissions relating to preparation and submission of

petition for involuntary commitment); Cornejo v. Bell.

592 F.3d 121. 127-28 (2d Cir. 2010) (absolute immunity

extended to state and federal officials initiating

noncriminal proceedings such as administrative

proceedings and civil litigation); Smith v. Shorstein. 217

F. Add'x 877. 880 (11th Cir. 2007) (holding that

prosecutors who initiated civil commitment proceedings

were entitled to absolute prosecutorial immunity in

subsequent civil rights action, absent evidence that they

had acted outside of their territorial jurisdiction);

Diestelhorst v. Rvan. 20 F. Add'x 544. 546 (7th Cir.

2001) (holding that prosecutor was absolutely immune

by instituting commitment proceedings); Jones v.

Howard. No. 18-1207. 2018 U.S. Dist. LEXIS 196351.

2018 WL 6039974. at *3 (D. Del. Nov. 19. 2018). affd

779 F. Add'x 151 (3d Cir. 2019) (holding that the deputy

attorney general had prosecutorial immunity for claims

arising out of involuntary commitment proceedings);

Roache v. Attorney Gen.'s Office. No. 9:12-cv-1034.

2013 U.S. Dist. LEXIS 141225. 2013 WL 5503151. at

*13-14 (N.D.N.Y. Seot. 30. 2013) (attorneys from the

New York State Attorney General's Office who

commenced civil commitment proceeding pursuant to

Mental Health [*5]

Law entitled to prosecutorial

immunity). Such immunity is absolute and is not

overcome by a showing that the prosecutor acted

wrongfully or maliciously. Grant v. Hollenbach. 870 F.2d

1135, 1138 (6th Cir. 1989). Therefore, the Court is sua

sponte dismissing Plaintiffs claims against Defendant

Brown.

As to Defendants Orr and Rogers, Plaintiff fails to

demonstrate entitlement to relief under Rule 60(b).

Plaintiff argues that these defendants are not entitled to

qualified immunity because they were not engaged in

discretionary functions. (See ECF No. 30 at Pg ID 192

(quoting Caldwell v. Moore. 968 F.2d 595. 599 (6th Cir.

1992): Harlow v. Fitzgerald. 457 U.S. 800. 818. 102 S.

Ct. 2727. 73 L. Ed. 2d 396 (1982)).) The Court,

however, did not dismiss Plaintiffs claims against

Defendants Orr or Rogers based on qualified immunity.

In other words, the Court did not conclude that the

relevant law was so unsettled that these officers would

not have known that their conduct was unlawful. See

Harlow. 457 U.S. at 818-19 ("If the law at that time was

not clearly established, an official could not reasonably

be

expected

to

anticipate

subsequent

legal

developments, nor could he fairly be said to "know” that

the law forbade conduct not previously identified as

unlawful."). Instead, the Court concluded that Plaintiff

failed to establish the objective and subjective

components of his deliberate indifference claim against

them. [*6] (See ECF No. 27 at Pg ID 177.)

Accordingly,

IT IS ORDERED that Plaintiffs motion for relief from

judgment is GRANTED IN PART AND DENIED IN

Page 3 of 3

2022 U.S. Dist. LEXIS 208745, *6

PART.

IT IS FURTHER ORDERED that the December 20,

2021 Judgment is VACATED.

IT IS FURTHER ORDERED that Plaintiffs claims

against Defendant Chris Brown are summarily

dismissed pursuant to 28 U.S.C. 8 1915(e)(2).

IT IS SO ORDERED.

Isl Linda V. Parker

LINDA V. PARKER

U.S. DISTRICT JUDGE

Dated: November 17, 2022

AMENDED JUDGMENT

Plaintiff filed this pro se civil rights action pursuant to 42

U.S.C. $ 1983 against Defendants on December 18,

2020. In an Opinion and Order entered December 20,

2021, the Court granted dispositive motions filed by

Defendants Joseph Michael Orr, Luke Rogers, and

Jeremy Zarski. On today's date, the Court summarily

dismissed Plaintiffs claims against Defendant Chris

Brown pursuant to 28 U.S.C. $ 1915(e)(2).

Accordingly,

IT IS ORDERED, ADJUDGED, AND DECREED that

Plaintiffs Complaint is DISMISSED WITH PREJUDICE.

Isl Linda V. Parker

LINDA V. PARKER

U.S. DISTRICT JUDGE

Dated: November 17, 2022

End of Document

Warning

As of: October 11,2023 11:08 PM Z

Kissner v. Orr

United States District Court for the Eastern District of Michigan, Southern Division

December 20, 2021, Decided; December 20, 2021, Filed

Civil Case No. 20-13445

Reporter

2021 U.S. Dist. LEXIS 242741 *; 2021 WL 5997976

DONALD LEE KISSNER, Plaintiff, v. JOSEPH

MICHAEL ORR, LUKE ROGERS, CHRIS BROWN, and

JEREMY ZARSKI, Defendants.

Subsequent History: Vacated by, Dismissed by, in

part, Judgment entered by, Motion granted by, in part,

Motion denied by, in part Kissner v. Orr. 2022 U.S. Dist.

LEXIS 208745. 2022 WL 17069559 ( E.D. Mich.. Nov.

17. 2022)

Prior History: Kissner v. Orr. 2021 U.S. Dist. LEXIS

244110. 2021 WL 6618768 ( E.D. Mich.. Aua. 31. 2021)

Core Terms

motion to dismiss, summary judgment motion, lighter

fluid, recommendations, report and recommendation,

deliberate indifference, failure to object, right to appeal,

no objection, immunity, advises, matters, parties,

waived

Counsel: [*1] Donald Lee Kissner, Plaintiff, Pro se,

Corunna, Ml.

For Joseph Michael Orr, officer, Luke Rogers, Oficer,

Defendants: James E. Tamm, Kerr, Russell, and Weber,

PLC, Detroit, Ml; Kevin Andrew McQuillan, Kerr, Russell

and Weber, PLC, Detroit, Ml.

For Jeremy Zarski, Dr., Defendant: Marcy R. Matson,

Hall Matson, PLC, East Lansing, Ml.

Judges: Honorable LINDA V. PARKER, UNITED

STATES DISTRICT JUDGE.

Opinion by: LINDA V. PARKER

Opinion

OPINION AND ORDER fit ADOPTING MAGISTRATE

JUDGE'S REPORTS AND RECOMMENDATIONS

(ECF NOS. 22. 231: (iil REJECTING PLAINTIFF'S

OBJECTION (ECF NO. 241; AND fin) GRANTING

DEFENDANTS JOSEPH MICHAEL ORR AND LUKE

ROGERS' MOTION TO DISMISS (ECF NO. 141 AND

DEFENDANT JEREMY ZARSKI'S MOTION FOR

SUMMARY JUDGMENT fECF NO. 151

Plaintiff filed this pro se civil rights action pursuant to 42

U.S.C. 8 1983 against Defendants on December 18,

2020. Defendants Joseph Michael Orr and Luke Rogers

are police officers who responded to an August 20,

2020 incident where Plaintiff was believed to have

attempted suicide by covering himself in lighter fluid in

preparation to light himself on fire. Defendant Jeremy

Zarski, D.O., is an emergency room physician who

examined Plaintiff and completed a Clinical Certificate

diagnosing Plaintiff [*2] as mentally ill, which was

submitted to a State probate court. On April 20, Officers

Orr and Rogers filed a motion to dismiss (ECF No. 14)

and Dr. Zarski filed a motion for summary judgment

(ECF No. 15). The matter has been referred to

Magistrate Judge Patricia T. Morris for all pretrial

proceedings, including a hearing and determination of

all non-dispositive matters pursuant to 28 U.S.C. 6

636(b)(1)(A) and/or a report and recommendation

("R&R") on all dispositive matters pursuant to 28 U.S.C.

8 636(b)(1)(B).

On August 20, Magistrate Judge Morris issued an R&R

recommending that the Court grant Dr. Zarski's

summary judgment motion. (ECF No. 22.) Magistrate

Judge Morris concludes that Dr. Zarski is entitled to

summary judgment because he was not a state actor.

(Id. at Pg ID 149-52.) On August 31, Magistrate Judge

Morris issued an R&R recommending that the Court

grant Officer Orr and Roger's motion to dismiss

Plaintiffs deliberate indifference claim against them.

(ECF No. 23.) Magistrate Judge Morris concludes that

under the circumstances presented, including the fact

that Plaintiff never told the officers that he was suffering

Page 2 of 2

2021 U.S. Dist. LEXIS 242741, *2

discomfort from the lighter fluid, "it would not have been

objectively obvious to these officers that there [*3] was

a medical need to wash off the lighter fluid, or that

failure to do so immediately posed a 'substantial risk of

serious harm.'" (Id. at Pg ID 163 (quoting Troutman v.

Louisville Metro Dep't of Corn. 979 F.3d 472. 482 (6th

Cir. 2020)). Further, Magistrate Judge Morris concludes,

the facts do not support the officers' subjective

knowledge of a serious risk of harm to Plaintiff. (Id.) In

response to Plaintiffs behavior, and the fact that he

smelled of lighter fluid, the officers conducted a short

investigation, restrained Plaintiff for his safety, and took

him to the hospital. (Id.) The delay in washing off the

lighter fluid occurred at the hospital. (Id.) At most,

Magistrate Judge Morris concludes, the officers were

negligent, which does not support a deliberate

indifference claim. (Id. at Pg ID 164 (citing Farmer v.

Brennan. 511 U.S. 825. 835. 114 S. Ct. 1970. 128 L.

Ed. 2d 811 (1994).)

"[qualified immunity should not apply"; and (3)

"[governmental immunity should not apply." (ECF No.

24 at Pg 167-68.) Plaintiff states no basis for the

objections presented. He identifies no error in

Magistrate Judge Morris' conclusions. A "general

objection [*5] to the entirety of the magistrate[ judgej's

report has the same effect[] as ... a failure to object."

Howard v. Sec'v of Health & Human Sen/s.. 932 F.2d

505. 509 (6th Cir. 1991).

At the conclusion of both R&Rs, Magistrate Judge

Morris advises the parties that they may object to and

seek review of the R&R within fourteen days of service

upon them. She further specifically advises the parties

that "[fjailure to file specific objections constitutes a

waiver of any further right to appeal." No objections

were filed with respect to Magistrate Judge Morris' R&R

with respect to Dr. Zarski's summary judgment motion.

Plaintiff filed [*4] objections to Magistrate Judge Morris'

R&R with respect to the officers' motion to dismiss,

however. (ECF No. 24.)

IT IS FURTHER ORDERED that Defendants Luke

Rogers and Joseph Michael Orr's Motion to Dismiss

(ECF No. 14) is GRANTED.

For this reason, and because Plaintiff filed no objections

to Magistrate Judge Morris' earlier R&R, the Court

deems Plaintiff to have waived any objections to both.

Therefore, the Court is adopting Magistrate Judge

Morris' recommendations.

Accordingly,

IT IS ORDERED that Defendant Jeremy Zarski's Motion

for Summary Judgment (ECF No. 15) is GRANTED;

IT IS SO ORDERED.

Isl Linda V. Parker

LINDA V. PARKER

U.S. DISTRICT JUDGE

Dated: December 20, 2021

When objections are filed to a magistrate judge's R&R

on a dispositive matter, the Court "make[sj a de novo

determination of those portions of the report or specified

proposed findings or recommendations to which

objection is made." 28 U.S.C. $ 636/Wf). The Court,

however, "is not required to articulate all of the reasons

it rejects a party's objections." Thomas v. Halter. 131 F.

Sudd. 2d 942. 944 (E.D. Mich. 2001) (citations omitted).

A party's failure to file objections to certain conclusions

of the report and recommendation waives any further

right to appeal on those issues. See Smith v. Detroit

Fed'n of Teachers Local 231. 829 F.2d 1370. 1373 (6th

Cir. 1987). Likewise, the failure to object to certain

conclusions in the magistrate judge's report releases the

Court from its duty to independently review those

issues. See Thomas v. Am, 474 U.S. 140. 149. 106 S.

Ct. 466. 88 L. Ed. 2d 435 (1985).

Plaintiff states only the following as objections to

Magistrate Judge Morris' August 31 R&R: (1) the

officers’ motion to dismiss "should not be granted”; (2)

End of Document

Warning

As of: October 11, 2023 11:07 PM Z

Kissner v. Orr

United States District Court for the Eastern District of Michigan, Southern Division

August 31, 2021, Decided; August 31,2021, Filed

CASE NO. 2:20-CV-13445

Reporter

2021 U.S. Dist. LEXIS 244110 *; 2021 WL 6618768

DONALD LEE KISSNER, Plaintiff, v. JOSEPH

MICHAEL ORR, LUKE ROGERS, CHRIS BROWN, and

JEREMY ZARSKI, Defendants.

Subsequent History: Adopted by, Objection overruled

by, Dismissed by, Summary judgment granted by

Kissner v. Orr. 2021 U.S. Dist. LEXIS 242741. 2021 WL

5997976 ( E.D. Mich.. Dec. 20. 2021)

Prior History: Kissner v. Orr. 2021 U.S. Dist. LEXIS

252109. 2021 WL 6618770 ( E.D. Mich.. Aua. 19. 2021)

R. CIV P. 12(B)(6) fECF NO. 141

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED

that Defendants Joseph Michael Orr and Luke Rogers'1

Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6)

(ECF No. 14) be GRANTED.

II. REPORT

Core Terms

A. Background

lighter fluid, qualified immunity, allegations, deliberate

indifference, motion to dismiss, custody,

RECOMMENDATION, scene, serious medical needs,

responded, detainee, arrived, suicide, burns

Counsel: [*1] Donald Lee Kissner, Plaintiff, Pro se,

Corunna, Ml.

For Joseph Michael Orr, officer, Luke Rogers, Oficer,

Defendants: James E. Tamm, Kerr, Russell, and Weber,

PLC, Detroit, Ml; Kevin Andrew McQuillan, Kerr, Russell

and Weber, PLC, Detroit, Ml.

For Jeremy Zarski, Dr., Defendant: Marcy R. Matson,

Hall Matson, PLC, East Lansing, Ml.

Judges: Patricia T. Morris, United States Magistrate

Judge. DISTRICT JUDGE LINDA V. PARKER.

Opinion by: Patricia T. Morris

Opinion

REPORT AND RECOMMENDATION ON

DEFENDANTS JOSEPH MICHAEL ORR AND LUKE

ROGERS' MOTION TO DISMISS PURSUANT TO FED.

On December 18, 2020, Plaintiff Donald Lee Kissner

filed a pro se civil complaint in this Court under 42

U.S.C. 6 1983 (ECF No. 1.) He alleges that on August

20, 2020, he "was drugged" and attempted to set

himself on fire. (ECF No. 1, PagelD.6.) One Shannon

Boudro called 911, and Police Officers Joseph Orr and

Luke Rogers responded. (Id.) Plaintiff alleges that the

officers placed him in their patrol car "with no medical

attention via calling for EMS or anything." ([*2] Id.) He

states that he sat in the patrol car for one hour and 40

minutes "covered from his head to his toes in lighter

fluid." (Id. at PagelD.6-7.) After that time, the officers

took Plaintiff to the hospital. (Id. at PagelD.7.) He

alleges that the officers knew that he was covered in

lighter fluid at 8:43 p.m. (Id. at PagelD.8.) Plaintiff states

that Dr. Zarski knew of his suicide attempt at 10:30 p.m.,

but that it was not until 3:43 a.m. that a nurse asked if

anyone had cleaned up his chemical burns. (Id.) At that

time the nurse made him take a shower. (Id.) Plaintiff

alleges that as a result of the delay, he has "scars on his

11 note that this officer's name is spelled "Rogers" in the

docket and the complaint (ECF No. 1) but spelled "Rodgers" in

Defendants' motion to dismiss. (ECF No. 14.) This Report and

Recommendation will defer to the spelling as reflected in the

docket at this time.

Page 2 of 5

2021 U.S. Dist. LEXIS 244110, *2

genitals, belly, head, and underarms from the chemical

burns.” (Id.)

Exhibit B to Plaintiffs complaint is a written report of

Officer Orr, who writes that on August 20, 2020, he and

Officer Rogers were dispatched to the scene where

Plaintiff had attempted suicide, and their investigation

into the call "lead (sic) to the hospitalization of the

suspect for a Psych Evaluation and investigation into

Felonious Assault and Attempted Arson." (Id. at

PagelD.14.) Orr stated that upon arriving at the scene,

they observed Plaintiff, wearing no clothes other than a

shirt [*3] tied around his waist. There was a strong odor

of lighter fluid emanating from the Plaintiff. The officers

detained Plaintiff for safety reasons. (Id.) Charcoal

lighter fluid and a lighter were recovered from the

Plaintiff. (Id.)

Plaintiffs Exhibit C appears to be a continuation of Orr's

report. He states that he double locked the handcuffs for

Plaintiffs safety, and advised him that he was under

arrest for felonious assault. Officer Orr, along with

Officer Rogers, began to transport Plaintiff to the jail, but

after Plaintiff made several statements about wanting to

kill himself, they instead took him to the Owosso

Memorial Hospital for a psychiatric evaluation. (Id. at

PagelD.16.) During this time, Plaintiff told the officers

that he was only trying to kill himself, and that he was

only trying to spray himself with lighter fluid. He admitted

that the purple lighter found at the scene was his. (Id.)

Upon arriving at the hospital, the officers escorted

Plaintiff to the emergency room, where Orr completed

an Involuntary Petition for a Psychological Evaluation.

Plaintiff was then released into the hospital's custody

pending the petition. (Id.) The report does not indicate

that Plaintiff [*4] complained about burns or skin

irritation from the lighter fluid.

____

ujho

heat?

B. Motion to Dismiss Standard

A motion to dismiss under Rule 12(b)(6) challenges the

legal sufficiency of the complaint with regard to whether

it states a claim upon which relief can be granted. When

deciding a motion under this subsection, "[tjhe court

must construe the complaint in the light most favorable

to the plaintiff, accept all the factual allegations as true,

and determine whether the plaintiff can prove a set of

facts in support of its claims that would entitle it to

relief." Bovee v. Coopers & Lvbrand C.P.A.. 272 F.3d

356, 360 (6th Cir. 2001). As the Supreme Court held in

Bell Atlantic Corn, v. Twomblv. 550 U.S. 544. 127 S. Ct.

1955. 167 L. Ed. 2d 929 (2007). a complaint must be

dismissed pursuant to Rule 12(b)(6) for failure to state a

claim upon which relief can be granted if the complaint

does not plead "enough facts to state a claim to relief

that is plausible on its face." Id. at 570 (rejecting the

traditional Rule 12(b)(6) standard set forth in Conlev v.

Gibson. 355 U.S. 41. 45-46. 78 S. Ct. 99. 2 L Ed. 2d 80

(1957)1. Under Rule 12(b)(6). "a plaintiffs obligation to

provide the ’grounds’ of his 'entitlement to relief requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not

do.” Twomblv. 550 U.S. at 555 (citations omitted). Even

though a complaint need not contain "detailed" factual

allegations, its ’’[fjactual allegations must be enough to

raise a right [*5] to relief above the speculative level on

the assumption that all the allegations in the complaint

are true (even if doubtful in fact)." Id. (citations omitted).

The Supreme Court has explained that the "tenet that a

court must accept as true all of the allegations contained

in the complaint is inapplicable to legal conclusions."

Ashcroft v. labal. 556 U.S. 662. 678. 129 S. Ct. 1937.

173 L. Ed. 2d 868 (2009). Although Rule 8 "marks a

notable and generous departure from the hypertechnical, code-pleading regime of a prior era," it "does

not unlock the doors of discovery for a plaintiff armed

with nothing more than conclusions." Id. "Determining

whether a complaint states a plausible claim for relief

will ... be a context-specific task that requires the

reviewing court to draw on its judicial experience and

common sense." Id. at 679. Thus, "a court considering a

motion to dismiss can choose to begin by identifying

pleadings that, because they are no more than

conclusions, are not entitled to the assumption of

truth.... When there are well-pleaded factual allegations,

a court should assume their veracity and then determine

whether they plausibly give rise to an entitlement to

relief." Id. "In determining whether to grant a Rule

12(b)(6) motion, the court primarily considers the

allegations in [*6] the complaint, although matters of

public record, orders, items appearing in the record of

the case, and exhibits attached to the complaint, also

may be taken into account." Nieman v. NLO. Inc.. 108

F.3d 1546. 1554 (6th Cir. 1997) (quoting 5A Charles A.

Wright & Arthur R. Miller, Federal Practice and

Procedure § 1357 (2d ed. 1990)). This circuit has further

"held that 'documents that a defendant attaches to a

motion to dismiss are considered part of the pleadings if

they are referred to in the plaintiffs complaint and are

central to [the plaintiffs] claim.'" Weiner v. Klais & Co..

108 F.3d 86. 89 (6th Cir. 1997) (quoting Venture Assoc.

Coro, v. Zenith Data Svs. Coro.. 987 F.2d 429. 431 (7th

Cir. 1993)): Yearv v. Goodwill Indus.-Knoxville. Inc.. 107

F.3d 443. 445 (6th Cir. 1997).

Page 3 of 5

2021 U.S. Dist. LEXIS 244110, *6

C. Qualified Immunity

Defendants argue that they are entitled to qualified

immunity. "The doctrine of qualified immunity protects

government officials from liability for civil damages

insofar as their conduct does not violate clearly

established statutory or constitutional rights of which a

reasonable person would have known." Pearson v.

Callahan. 555 U.S. 223. 231. 129 S. Ct. 808. 172 L. Ed.

2d 565 (1999) (internal citations omitted). Further,

Qualified immunity balances two important

interests—the need to hold public officials

accountable

when

they

exercise

power

irresponsibly and the need to shield officials from

harassment, distraction, and liability when they

perform their duties reasonably. The protection of

qualified immunity applies regardless [*7] of

whether the government official's error is a mistake

of law, a mistake of fact, or a mistake based on

mixed questions of law and fact.

Because qualified immunity is an immunity from suit

rather than a mere defense to liability!,] it is

effectively lost if a case is erroneously permitted to

go to trial. Indeed, we have made clear that the

driving force behind the creation of the qualified

immunity doctrine was a desire to ensure that

insubstantial claims against government officials

will be resolved prior to discovery. Accordingly, we

repeatedly have stressed the importance of

resolving immunity questions at the earliest stage in

litigation.

Id. at 231-32 (internal citations omitted).

"If the law did not put the officer on notice that his

conduct would be clearly unlawful, summary judgment

based on qualified immunity is appropriate." Saucier v.

Katz. 533 U.S. 194. 202. 121 S. Ct. 2151. 150 L. Ed. 2d

272 (2001). The Saucier Court laid out a two-step

process for determining whether an official may claim

qualified immunity: first, "Taken in the light most

favorable to the party asserting the injury, do the facts

show the officer's conduct violated a constitutional

right?"; and second, "the next. . . step is to ask whether

the right was clearly established." Id. at 201. Under

Saucier, the inquiry [*8] was sequential, requiring the

district court to first consider whether there was a

constitutional violation. However, in Pearson, the

Supreme Court held that the two-step sequential

analysis set forth in Saucier is no longer mandatory.

Rather, Pearson commended the order of inquiry to the

judge's discretion, to be exercised on a case-by-case

basis.

The inquiry into whether the right is clearly established

"must be undertaken in light of the specific context of

the case, not as a broad general proposition; and it

serves to advance understanding of the law . .Id. The

right at issue must be clearly established "in a more

particularized, and hence more relevant sense: The

contours of the right must be sufficiently clear that a

reasonable official would understand that what he is

doing violates that right." Anderson v. Creighton, 483

U.S. 635. 640. 107 S. Ct. 3034. 97 L. Ed. 2d 523 (1987).

The facts are to be "viewed in the light most favorable to

the plaintiff[.]" Radvanskv v. City of Olmsted Falls, 395

F.3d 291. 302 16th Cir. 2005).

Once the defense of qualified immunity is raised, the

plaintiff bears the burden of proving that the defendant

is not entitled to qualified immunity. Rodriguez v.

Passinault. 637 F.3d 675. 689 (6th Cir. 2011).

In the present case, Plaintiff was in police custody from

the time he was handcuffed and placed in the patrol car

until he was released to the custody of the hospital, a

period [*9] that Plaintiff alleges was one hour and 40

minutes. (ECF No. 1, PagelD.7.) In a generalized

sense, he had a right under the Fourteenth Amendment

to be afforded medical care for his serious medical

needs during this time, analogous to the Eight

Amendment deliberate indifference standard for

individuals who are serving custodial sentences. See

Winkler v. Madison Ctv., 893 F.3d 877. 890 (6th Cir.

2018) ("The Eighth Amendment's prohibition on cruel

and unusual punishment generally provides the basis to

assert a $ 1983 claim of deliberate indifference to

serious medical needs, but where that claim is asserted

on behalf of a pre-trial detainee, the Due Process

Clause of the Fourteenth Amendment is the proper

starting point."). See also Troutman v. Louisville Metro

Dep't of Con.. 979 F.3d 472. 482-883 (6th Cir. 2020)

("[F]or pretrial detainees...this right to adequate medical

treatment attaches through the Due Process Clause of

the Fourteenth Amendment, which affords pretrial

detainees rights analogous to those of prisoners. A

prison official violates that right to adequate medical

treatment when he or she acts with deliberate

indifference to a pretrial detainee’s serious medical

needs.'') (internal citations omitted).

The deliberate indifference standard has both an

objective and a subjective component. "For the objective

component, the detainee must demonstrate the

Page 4 of 5

2021 U.S. Dist. LEXIS 244110, *9

existence of a sufficiently serious medical need." Spears

v. Ruth. 589 F.3d 249. 254 (6th Cir. 2009). "To show

that the medical need was sufficiently serious, [*10] the

plaintiff must show that the conditions of incarceration

imposed a 'substantial risk of serious harm."’ Troutman.

979 F.3d at 482 (quoting Miller v. Calhoun County. 408

F. 3d 803. 812 (6th Cir. 2005)1. Under the subjective

standard, "an inmate must show both that an official

knew of her serious medical need and that, despite this

knowledge, the official disregarded or responded

unreasonably to that need." Downard for Est. of

Downard v. Martin. 968 F.3d 594. 600 (6th Cir. 2020).

"The failure to alleviate a significant risk that an officer

'should have perceived but did not' is insufficient for a

claim of deliberate indifference." Troutman. 979 F.3d at

483 (quoting Farmer v Brennan. 511 U.S. 825. 838. 114

S. Ct. 1970. 128 L. Ed. 2d 811 (1994)).

Officers Orr and Rogers responded to a dispatch

^reporting that someone was trying to set himself on fire.

iA.uJ&y When they arrived on the scene, they observed Plaintiff,

„

,>who smelled of lighter fluid, holding a cigarette. The

' , £fe,1/miost obvious and most serious risk of substantial harm

^

to the Plaintiff was the risk that he would commit suicide

Nor has he met the subjective test. While Orr noted that

Plaintiff smelled [*12] of lighter fluid, neither he nor

Rogers disregarded that fact. After a short investigation,

they restrained Plaintiff for his safety and took him to the

hospital. The longer delay in providing Plaintiff with a

shower to wash off the lighter fluid occurred at the

hospital, where he alleges, it was not until 3:43 a.m. that

a nurse asked him if anyone had cleaned up is chemical

burns. (Id. at PagelD.8.) This was over five hours after

he arrived at the hospital before 10:22 p.m.2 Even if the

officers had called paramedics to the scene, as Plaintiff

contends they should have done, at best Plaintiff would

have arrived at the hospital somewhat sooner—but

once he was released to the hospital's custody, he

would still have had a five-hour delay in getting a

shower. The Defendant officers are not vicariously liable

for the hospital's or Dr. Zarski's actions after Plaintiff

was no longer in their custody.

ft rvO

by setting himself on fire. Indeed, according to Orr's

yp- r^^Keport, which is appended to the complaint as Exhibit B,

,

flV the Plaintiff, who was agitated and verbally aggressive,

"made several statements that he wanted to light

Y0 **

himself on fire and wanted to kill himself." (ECF No. 1,

PagelD.14.) In addition, Plaintiff was smoking a

cigarette, and failed to comply with the officers'[*11]

orders to put it out. (Id.) The officers responded

•» ‘

appropriately and reasonably to the risk by removing the

cigarette, handcuffing the Plaintiff, and detaining him

"for safety reasons" in the back of the patrol vehicle (Id.

at PagelD.14, 16.) They also secured the bottle of

lighter fluid and the lighter. (Id. at PagelD.14.) Following

a short investigation at the scene, Plaintiff was taken to

the hospital. (Id. at PagelD.16.) At the hospital, Orr took

the additional step of completing an Involuntary Petition

for a Psychological Evaluation and releasing Plaintiff

into the hospital's custody. (Id. at PagelD.16, 18.)

??

Given the overriding concern that Plaintiff would commit

suicide by setting himself on fire, it would not have been

objectively obvious to these officers that there was a

medical need to wash off the lighter fluid, or that failure

to do so immediately posed a "substantial risk of serious

harm." Troutman. 979 F3d at 482. It should be noted

that Plaintiff does not allege that he told the officers he

was suffering any discomfort from the lighter fluid.

Plaintiff has therefore not met the objective test for

deliberate indifference.

Qualified immunity "'provides ample support to all but

the plainly incompetent or those who knowingly violate

the law.'" Burns v. Reed, 500 U.S. 478, 494-95, 111 S.

Ct. 1934. 114 L. Ed. 2d 547 (1991) (quoting Mallev v.

Brioas. 475 U.S. 335. 341. 106 S. Ct. 1092. 89 L. Ed. 2d

271 (1986)). Here, Orr and Rogers responded

reasonably to Plaintiffs medical/psychological needs.

Even if we assume that they failed to draw an inference

that Plaintiff [*13] might suffer chemical burns from the

lighter fluid, that would amount to negligence at most,

and negligence will not support a finding of deliberate

indifference. See Farmer. 511 U.S. at 835 (holding that

an Eighth Amendment violation requires a "state of mind

more blameworthy than negligence").

Because Plaintiff has not plausibly pled a constitutional

violation, these Defendants are entitled to qualified

immunity.

D. Governmental Immunity

To the extent that Plaintiff also asserts a state law

negligence claims, these Defendants are entitled to

statutory immunity under Michigan’s involuntary

commitment law. Specifically, M.C.L. $ 330.1427b(1)

provides:

(1) A peace officer who acts in compliance with this

2 Dr. Zarski's Clinical Certificate (ECF No. 1, PagelD.20) notes

that his examination commenced at 10:30 p.m. Medical

records appended to the complaint show that Plaintiff arrived

at the hospital at 10:22 p.m. (Id. at PagelD.22.)

Page 5 of 5

2021 U.S. Dist. LEXIS 244110, *13

act is acting in the course of official duty and is not

civilly liable for the action taken.

An exception to immunity exists only where the officer

"engages in behavior involving gross negligence or

wilful and wanton misconduct." M.C.L 8 330.1427b(2).

"Gross negligence" , is defined as conduct "so reckless

as to demonstrate a substantial lack of concern for

whether an injury results." M.C.L. 8 691.1407(8)(a). As

discussed above, Officers Orr and Rogers secured an

individual who was threatening suicide by selfimmolation, took away his lit cigarette, lighter fluid, and

lighter, transported him [*14] to the hospital, and

petitioned for an involuntary psychological evaluation.

This is the antithesis of gross negligence or

recklessness.

Not later than 14 days after service of an objection, the

opposing party may file a concise response

proportionate [*15] to the objections in length and

complexity. Fed. R. Civ. P. 72(b)(2)\ E.D. Mich. LR

72.1(d). The response must specifically address each

issue raised in the objections, in the same order, and

labeled as "Response to Objection No. 1," "Response to

Objection No. 2," etc. If the Court determines that any

objections are without merit, it may rule without awaiting

the response.

Date: August 31, 2021

Is/ Patricia T. Morris

Patricia T. Morris

United States Magistrate Judge

E. Conclusion

For

the

reasons

discussed

above,

IT

IS

RECOMMENDED that Defendants Orr and Rogers'

Motion to Dismiss Pursuant to Fed, R. Civ. P. 12(b)(6)

(EOF No. 14) be GRANTED.

III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil

Procedure, "[wjithin 14 days after being served with a

copy of the recommended disposition, a party may

serve and file specific written objections to the proposed

findings and recommendations. A party may respond to

another party's objections within 14 days after being

served with a copy." Fed. R. Civ. P. 72(b)(2): see also

28 U.S.C. § 636(b)(1). Failure to file specific objections

constitutes a waiver of any further right of appeal.

Thomas v. Arn. 474 U.S. 140. 106 S. Ct. 466. 88 L. Ed.

2d 435 (1985): Howard v. Sec'v of Health & Human

Servs.. 932 F.2d 505 (6th Cir. 1991): United States v.

Walters. 638 F.2d 947 (6th Cir. 1981). The parties are

advised that making some objections, but failing to raise

others, will not preserve all the objections a party may

have to this R&R. Willis v. Sec'v of Health & Human

Servs.. 931 F.2d 390. 401 (6th Cir. 1991): Dakroub v.

Detroit Fed'n of Teachers Local 231. 829 F.2d 1370,

1373 (6th Cir. 1987). Pursuant to E.D. Mich. LR

72.1(d)(2). a copy of any objections is to be served upon

this magistrate judge.

Any objections must be labeled as "Objection No. 1,"

"Objection No. 2," etc. Any objection must recite

precisely the provision of this R&R to which it pertains.

End of Document

© Neutral

As of: October 11, 2023 11:05 PM Z

Kissner v. Orr

United States District Court for the Eastern District of Michigan, Southern Division

August 19, 2021, Decided; August 20, 2021, Filed

CASE NO. 2:20-CV-13445

Reporter

2021 U.S. Dist. LEXIS 252109 *; 2021 WL 6618770

DONALD LEE KISSNER, Plaintiff, v. JOSEPH

MICHAEL ORR, LUKE ROGERS, CHRIS BROWN, and

JEREMY ZARSKI, Defendants.

Subsequent History: Magistrate's recommendation at

Kissner v. Orr. 2021 U.S. Dist. LEXIS 244110. 2021 WL

6618768 (E.D. Mich.. Aua. 31. 2021)

Core Terms

non-moving, summary judgment motion, state actor,

summary judgment, RECOMMENDATION, custody,

lighter fluid, alleges

Counsel: [*1] Donald Lee Kissner, Plaintiff, Pro se,

Corunna, Ml.

For Joseph Michael Orr, officer, Luke Rogers, Oficer,

Defendants: James E. Tamm, Kerr, Russell, and Weber,

PLC, Detroit, Ml; Kevin Andrew McQuillan, Kerr, Russell

and Weber, PLC, Detroit, Ml.

For Jeremy Zarski, Dr., Defendant: Marcy R. Matson,

Hall Matson, PLC, East Lansing, Ml.

Judges: Patricia T. Morris, United States Magistrate

Judge. DISTRICT JUDGE LINDA V. PARKER.

Opinion by: Patricia T. Morris

Opinion

■MMMMMMN

REPORT AND RECOMMENDATION ON DEFENDANT

JEREMY ZARSKI'S MOTION FOR SUMMARY

JUDGMENT fECF No. 151

I. RECOMMENDATION

For the reasons set forth below, IT IS RECOMMENDED

that Defendant Jeremy Zarski's Motion for Summary

Judgment (ECF No. 15) be GRANTED.

II. REPORT

A. Background

On December 18, 2020, Plaintiff Donald Lee Kissner

filed a pro se civil complaint in this Court under 42

U.S.C. § 1983 (ECF No. 1.) He alleges that on August

20, 2020, he "was drugged" and attempted to set

himself on fire. (ECF No. 1, PagelD.6.) One Shannon

Boudro called 911, and Police Officers Joseph Orr and

Luke Rogers responded. (Id.) Plaintiff alleges that the

officers placed him in their patrol car "with no medical

attention via calling for EMS or anything." (Id.) He states

that he sat in the patrol car for [*2] one hours and 40

minutes "covered from his head to his toes in lighter

fluid." (Id. at PagelD.6-7.) After that time, the officers

took Plaintiff to the hospital. (Id. at PagelD.7.) He

alleges that the officers knew that he was covered in

lighter fluid at 8:43 p.m. (Id. at PagelD.8.) Plaintiff states

that Dr. Zarski knew of his suicide attempt at 10:30 p.m.,

but that it was not until 3:43 a.m. that a nurse asked if

anyone had cleaned up his chemical burns. (Id.) At that

time the nurse made him take a shower. (Id.) Plaintiff

alleges that as a result of the delay, he has "scars on his

genitals, belly, head, and underarms from the chemical

burns." (Id.)

Exhibit B to Plaintiffs complaint is a written report of

Officer Orr, who writes that on August 20, 2020, he and

Officer Rogers were dispatched to the scene where

Plaintiff had attempted suicide, and their investigation

into the call "lead (sic) to the hospitalization of the

suspect for a Psych Evaluation and investigation into

Felonious Assault and Attempted Arson." (Id. at

PagelD.14.) Orr stated that upon arriving at the scene,

they observed Plaintiff, wearing no clothes other than a

shirt tied around his waist. There was a strong odor [*3]

Page 2 of 5

2021 U.S. Dist. LEXIS 252109, *3

of lighter fluid emanating from the Plaintiff. The officers

detained Plaintiff for safety reasons. (Id.)

Plaintiffs Exhibit C appears to be a continuation of Orr's

report. He, along with Officer Rogers, began to transport

Plaintiff to the jail, but after Plaintiff made several

statements about wanting to kill himself, they instead

took him to the Owosso Memorial Hospital for a

psychiatric evaluation. (Id. at PagelD.16.) Upon arriving

at the hospital, the officers escorted Plaintiff to the

emergency room, where Orr completed an Involuntary

Petition for a Psychological Evaluation. Plaintiff was

then released into the hospital's custody pending the

petition. (Id.) Z-PUMde-f- DJar rat* tl&jss

A court will grant a party's motion for summary judgment

when the movant shows that "no genuine dispute as to

any material fact" exists. Fed. R. Civ. P. 56(a). In

reviewing the motion, the court must view all facts and

inferences in the light most favorable to the non-moving

party. Matsushita Elec. Indus. Co. v. Zenith Radio Corn,,

475 u s 574 587 106 s ct 1348 89 L Ed 2d 538

(1986). The moving party bears "the initial burden of

showing the absence of a genuine issue of material fact

as to an essential element of the non-movant's case."

Street v. J.C. Bradford & Co.. 886 F.2d 1472. 1479 (6th

Cir. 1989) (quoting Celotex Coro, v. Cartrett, 477 U.S.

31Z_323J198§1)(internal quotation marks omitted). In

making its determination, a court may consider the

'fh&i'? zoim rete<G5cc\. plausibility of the movant's evidence. Matsushita, 475

Plaintiffs Exhibit D is the Probate Court Petition for

Mental Health Treatment submitted by Officer Orr. In the

Petition, Orr states, "Subject was covered in lighter fluid

and made several statements that he was going to kill

himself and light himself on fire." (Id. at PagelD.18.)

Plaintiffs Exhibit E is a Clinical Certificate submitted to

the Probate Court by Dr. Jeremy Zarski, stating that he

examined Plaintiff at 10:30 p.m. on August 20, 2020,

and determined that he was mentally ill, that is, that

Plaintiff "has a substantial [*4] disorder of thought or

mood that significantly impairs judgment, behavior,

capacity to recognize reality, or ability to cope with the

ordinary demands of life." (Id. at PagelD.20.) Dr. Zarski

diagnosed "acute suicidal ideation, noting "multiple

suicidal threats and attempts including pouring gas on

himself to light himself on fire." (Id.)

Defendant Jeremy Zarski filed his motion for summary

judgment on April 20, 2021. (ECF No. 15.) Plaintiff has

not filed a response. Appended to the motion as Exhibit

1 is Dr. Zarski's affidavit. He states that on August 20,

2020, he was working as an emergency department

physician at Owosso Memorial Hospital, and in that

capacity he conducted a psychological evaluation of

Plaintiff to determine if he was at risk of harming himself

or others. (ECF No. 15-1, PagelD.111.) He states, "At

all times relevant to the allegations in the Complaint, I

was acting as a private physician providing care through

the emergency department at Owosso memorial

Hospital. I was not employed by the state or a state

agency." (Id.) He further states, "All of my interactions

and determinations relating to Plaintiff were based

entirely on my own professional judgment and

opinion." [*5] (Id.)

B. Summary Judgment Standard

U.S. at 587-88. Summary judgment is also proper when

the moving party shows that the non-moving party

cannot meet its burden of proof. Celotex. 477 U.S. at

325.

The non-moving party cannot merely rest on the

pleadings in response to a motion for summary

judgment. Anderson v. Liberty Lobby, Inc., 477 U.S.

242. 248. 106 S. Ct. 2505. 91 L. Ed. 2d 202 (1986).

Instead, the non-moving party has an obligation to

present "significant probative evidence" to show that

"there is [more than] some metaphysical doubt as to the

material facts." Moore v. Philip Morris Cos., 8 F.3d 335.

339-40 (6th Cir. 1993). The non-movant cannot withhold

evidence until trial or rely on speculative possibilities

that material issues of fact will appear later. 10B Charles

Alan Wright & Arthur R. Miller, Federal Practice

and [*6] Procedure § 2739 (3d ed. 1998). "[T]o

withstand a properly supported motion for summary

judgment, the non-moving party must identify specific

facts and affirmative evidence that contradict those

offered by the moving party." Cosmas v. Am. Express

Centurion_Bank1_7ZLZ^-^M2^Z^-4^BJ—^B2-[Q^-tLL

2010). In doing so, the non-moving party cannot simply

assert that the other side's evidence lacks credibility, ltd

at 493. And while a pro se party's arguments are entitled

to liberal construction, "this liberal standard does not.. .

'relieve [the party] of his duty to meet the requirements

necessary to defeat a motion for summary judgment.'"

Veloz v. New York. 339 F. Sudd. 2d 505. 513 (S.D. N.Y.

2004) (quoting Jorgensen v. Eoic/Sonv Records. 351

F.3d 46. 50 (2nd Cir. 2003)). "[A] pro se party’s 'bald

assertion,' completely unsupported by evidence, is not

sufficient to overcome a motion for summary judgment."

Lee v. Coughlin. 902 F. Sudd. 424, 429 (S.D. N.Y.

1995) (quoting Carey v. Crescenzi, 923 F.2d 18. 21 (2d

Cir. 1991)).

Page 3 of 5

2021 U.S. Dist. LEXIS 252109, *6

When the non-moving party fails to adequately respond

to a summary judgment motion, a district court is not

required to search the record to determine whether

genuine issues of material fact exist. Street. 886 F.2d at

1479-80. The court will rely on the "facts presented and

designated by the moving party." Guarino v. Brookfield

Two. Trs., 980 F.2d 399. 404 76th Cir. 1992). After

examining the evidence designated by the parties, the

court then determines "whether the evidence presents a

sufficient disagreement to require submission to a jury

or whether it is so one-sided [*7] that one party must

prevail as a matter of law." Booker v. Brown &

Williamson Tobacco Co.. 879 F.2d 1304. 1310 (6th Cir.

1989) (quoting Anderson. 477 U.S. at 251-52).

Summary judgment will not be granted "if the evidence

is such that a reasonable jury could return a verdict for

the non-moving party." Anderson. 477 U.S. at 248.

C. Plaintiff Cannot Show That Dr. Zarski Was a State

Actor

Dr. Zarski argues that because he was not a state actor,

he cannot have liability under 42 U.S.C. 6 1983.

To establish a claim under § 1983. a plaintiff must show

the deprivation of a constitutional right "by a person

acting under the color of state law." Wolotskv v. Huhn.

960 F.2d 1331. 1335 16th Cir. 1992) (citing Jones v.

Duncan. 840 F.2d 359. 361-62 (6th Cir. 1988)). "The

principal inquiry in determining whether a private party's

actions constitute 'state action' under the Fourteenth

Amendment is whether the party's actions may be 'fairly

attributable to the state."’ Id. (quoting Luctar v.

Edmondson Oil Co.. 457 U.S. 922. 937. 102 S. CL

2744. 73 L. Ed. 2d 482 (1982)Y

The Sixth Circuit has set forth three tests to determine

whether a private party's actions are attributable to the

state-the public function test, the state compulsion test,

and the nexus test. Citing Wolotskv. 960 F.2d at 1335.

the Court in Ellison v. Garbarino, 48 F.3d 192, 195 (6th

Cir. 1995), summarized the tests as follows:

The public function test requires that the private

entity exercise powers which are traditionally

exclusively reserved to the state. The typical

examples are running elections or eminent domain,

The state compulsion test requires proof that the

state [*8] significantly encouraged or somehow

coerced the private party, either overtly or covertly,

to take a particular action so that the choice is really

that of the state. Finally, the nexus test requires a

sufficiently close relationship (i.e., through state

regulation or contract) between the state and the

private actor so that the action taken may be

attributed to the state. (Internal punctuation and

citations omitted).

Here, Dr. Zarski's one-half hour emergency room

examination of Plaintiff and his report to the Probate

Court that Plaintiff was mentally ill are insufficient to

show that he was a de facto state actor. In Ellison, the

plaintiffs wife, believing that the plaintiff would become

violent, obtained a court order for the Plaintiff to be

transported for a psychological evaluation. Sheriffs

Deputies transported the plaintiff to a private physician's

office for the evaluation, and the doctor completed a

certification that was necessary for the plaintiffs

involuntary commitment. The Sixth Circuit held that the

doctor was not a state actor under any of the three

tests. The Court found that under the compulsion test,

"the Tennessee statute does not compel or encourage

private

individuals [*9]

to

pursue

involuntary

commitment." id.. 48 F.3d at 196. The Court also cited

Janicsko v. Peliman, 774 F.Suoo. 331, 338-39 (M.D. Pa.

1991) which found it "significant that physicians retained

the discretion under the Pennsylvania statute to

determine when commitment is necessary." Id.

Like the Tennessee statute in Ellison, the Michigan

Mental Health Code does not compel involuntary

commitment, but provides that a person may be

committed only upon examination and certification by an

examining physician:

If the examining physician or psychologist does not

certify that the individual is a person requiring

treatment, the individual shall be released

immediately. If the examining physician or

psychologist executes a clinical certificate, the

individual may be hospitalized under [M.C.L. §

1423]. 1

M.C.L. § 330.1429.

As in Janicsko, under the Michigan statute the

examining physician retains the discretion to determine

whether or not commitment is necessary. In this case,

Dr. Zarski affirms in his affidavit that all of his

interactions and determinations regarding the Plaintiff

were based on his own professional judgment.2

___________________________

1 Section 1423 sets forth requirements for mental health

hospitalizations.

2 Because Plaintiff has not responded to this motion, the Court

Page 4 of 5

2021 U.S. Dist. LEXIS 252109, *9

The Ellison Court also found that the plaintiff made "no

attempt to establish a sufficient 'nexus' between

defendants," and therefore the nexus test was

inapplicable. 48 F.3d at 196. Likewise, the Court found

that the plaintiff [*10] had offered no analysis, historical

or otherwise, supporting the public function test, adding,

"Considering that plaintiff bears the burden on this

issue, this failure alone renders the test inapplicable." Id.

So too in the present case, the Plaintiff has not shown

that Dr. Zarski was a state actor under any of the three

tests.

existence of an element essential to that party's case,

and on which that party will bear the burden of proof at

trial." Daniels v. Woodide, 396 F.3d 730. 735 (6th Cir.

2005). Again, Plaintiff has not responded to the present

motion, and has failed to establish any genuine factual

dispute as to whether Dr. Zarski was a state actor, an

essential element of a $ 1983 claim,

In this case, Dr. Zarski's role was to evaluate Plaintiffs

mental status, and in carrying out that role, he was not a

state actor. Nevertheless, Plaintiff is not challenging his

commitment for mental health evaluation or treatment,

but rather the alleged delay in obtaining medical

attention necessitated by being covered in lighter fluid.

And it is true that the state has an obligation to provide

medical care to those who are in custody. See West v.

Atkins. 487 U.S. 42. 108 S. Ct. 2250. 101 L Ed. 2d 40

(1988).

RECOMMENDED that Defendant Jeremy Zarski's

Motion for Summary Judgement be GRANTED,

In Carl v. Muskegon County, 763 F.3d 592 (6th Cir.

2014). the Sixth Circuit found that a private doctor who

performed a psychological evaluation of the plaintiff was

a state actor. The plaintiff in Carl was a pretrial

detainee. Distinguishing Ellison, and finding that the

respond to another party's objections within 14 days

a^er being served with a copy." Fed. R. Civ, P;_Z2{b}(2)_\

see a^so 28 U.S.C. § 636(b)(1). Failure to file specific

objections constitutes a waiver of any further right of

appeal. Thomas v. Arn, 474 U.S. HO, 106 S._Ct...466L

88 L. Ed. 2d 435 (1985): Howard v. Sec'v of Health &

Human Servs.. 932 F.2d 505 (6th Cir. 1991): United

States v. Walters. 638 F.2d 947 (6th Cir. 1981). The

parties are advised that making some objections, but

failing to raise others, will not preserve all the objections

a party may have to this R&R. Willis v. Sec'v of Health &

Human Servs.. 931 F.2d 390. 401 (6th Cir. 1991):

Dakroub v. Detroit Fed'n of Teachers Local 231, 829

F.2d 1370, 1373 (6th Cir. 1987). Pursuant to E.D. Mich.

LR 72.1(d)(2). a copy of any objections is to be served

upon this magistrate judge.

D. Conclusion

For

doctor met the public function test, the Court centered

its conclusion on the fact that the plaintiff was in state

custody:

More importantly, the plaintiff in Ellison was not a

ward of the state. Ellison, 48 F.3d at 194. This

distinction is key. [*11] Because Ellison did not

arise in the context of providing mental health care

to those in the state's custody, the district court

should not have relied on that case.

the

reasons

discussed

above,

IT

IS

III. REVIEW

Pursuant to Rule 72(b)(2) of the Federal Rules of Civil

Procedure. "[w]ithin 14 days after being served with a

copy of the recommended [*12] disposition, a party

may serve and file specific written objections to the

proposed findings and recommendations. A party may

Id. at 597.

In the present case, the Plaintiff was not in state custody

when Dr. Zarski examined him. At that point, he was not

under arrest and he was not a pretrial detainee. Indeed,

Officer Orr's report, appended to Plaintiffs complaint as

Exhibit C, affirmatively states that Plaintiff was released

to the custody of the hospital. (EOF No. 1, PagelD.16.)

Accordingly, the controlling case is Ellison, not Carl.

Summary judgment should be granted "against a party

who fails to make a showing sufficient to establish the

will rely on Dr. Zarski's submission. Guarino, 980 F.2d at 404.

Any objections must be labeled as "Objection No. 1,"

"Objection No. 2," etc. Any objection must recite

precisely the provision of this R&R to which it pertains,

Not later than 14 days after service of an objection, the

opposing party may file a concise response

proportionate to the objections in length and complexity,

Fed. R. Civ. P. 72(b)(2); E.D. Mich. LR 72.1(d). The

response must specifically address each issue raised in

the objections, in the same order, and labeled as

"Response to Objection No. 1," "Response to Objection

No. 2," etc. If the Court determines that any objections

are without merit, it may rule without awaiting the

response.

Page 5 of 5

2021 U.S. Dist. LEXIS 252109, *12

Date: August 19, 2021

Isl PATRICIA T. MORRIS [*13]

Patricia T. Morris

United States Magistrate Judge

End of Document

Additional material

from this filing is

available in the

Clerk's Office.