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The Oak Park police officers were: Daniel Rose, Andrew Belanger, Brian Bolash,

and Anthony Carignan.

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

KEVIN DARNELL RAGLAND,

Plaintiff,

v. Case No. 08-15253

M. RABY, KEITH BIRBERICK, HONORABLE AVERN COHN

KEVIN KERR, NICOLAS SMISCIK,

and JOHN DOE,

Defendants.

___________________________________/

ORDER

DENYING PLAINTIFF’S OBJECTIONS (Doc. 135)

AND

ADOPTING REPORT AND RECOMMENDATION (Doc. 134)

AND

DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT (Doc. 128)

AND

GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Doc. 130)

I.

This is a prisoner civil rights case under 42 U.S.C. § 1983. Plaintiff claims that

defendants, police officers from the Oak Park and Southfield Police Departments,

violated his constitutional rights while effectuating his arrest and denying him proper

medical care. The matter has been referred to a magistrate judge for all pretrial

proceedings. The Oak Park police officers1 were dismissed on summary judgment

following a report and recommendation by the magistrate judge. Doc. 117. Thereafter,

the Southfield police officers, defendants M. Raby, Keith Birberick, Kevin Kerr, and

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Smiscik appears in the record spelled “Smissick” and “Smiscik.” 

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Nicholas Smiscik2 (the Southfield defendants) filed a motion for summary judgment. 

Plaintiff also filed a motion for summary judgment against the Southfield defendants. 

On December 14, 2011, the magistrate judge issued a report and

recommendation (MJRR) recommending that plaintiff’s motion be denied and the

Southfield defendants’ motion be granted. Before the Court are plaintiff’s objections to

the MJRR. For the reasons that follow, the objections will be denied, the MJRR will be

adopted, plaintiff’s motion will be denied, and defendants’ motion for summary judgment

will be granted.

II.

The order adopting the MJRR as to the Oak Park defendants (Doc. 117) briefly

described the relevant facts as follows:

Plaintiff participated in an armed robbery of a retail store. During the

getaway, plaintiff and his accomplice led police on a high speed chase before

being forcibly stopped by police cars. As officers approached the car, plaintiff

had to be told at least twice to show his hands. Plaintiff admits he had his gun in

the car, but denies reaching for it. Plaintiff and his accomplice were physically

removed from the car and taken to the ground. Defendants says that minimal

force was used in subduing plaintiff. Plaintiff, however, says that after being

pulled from the car, defendants hit and kicked him in his face, head, back, ribs

and forcibly twisted his ankle. He also claims to have been hit with a billy club. 

The entire incident was recorded on an in-car dash camera in defendant Bolash’s

police car. The video, which the magistrate judge and Court reviewed, does not

show plaintiff being hit or kicked or assaulted with a billy club by any of the

moving defendants.

After his arrest, plaintiff was taken to Oak Park Jail. He says he requested

medical treatment for his injuries. He says he had to wait for five hours before

being taken to the hospital where he was diagnosed with “bruised ribs,” provided

ice and told to take over-the-counter pain medication. 

(Doc. 117, page 2, internal footnote omitted).

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III.

A district court must conduct a de novo review of the parts of a magistrate

judge's report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1). The

district "court may accept, reject, or modify, in whole or in part, the findings or

recommendations made by the magistrate" judge. Id. The requirement of de novo

review "is a statutory recognition that Article III of the United States Constitution

mandates that the judicial power of the United States be vested in judges with life

tenure." United States v. Sami, 754 F.2d 670, 672 (6th Cir. 1985).

A general objection, or one that merely restates the arguments previously

presented, is not sufficient to alert the court to alleged errors on the part of the

magistrate judge. An "objection" that does nothing more than state a disagreement with

a magistrate judge's suggested resolution, or simply summarizes what has been

presented before, is not an objection as that term is used in this context. Howard v.

Sec'y of Health and Human Servs., 932 F.2d 505, 508 (6th Cir. 991) ("It is arguable in

this case that Howard's counsel did not file objections at all.... [I]t is hard to see how a

district court reading [the ‘objections'] would know what Howard thought the magistrate

had done wrong.").

IV.

Plaintiff’s objections essentially repeat the arguments considered and rejected by

the magistrate judge. As explained in the MJRR, it was proper for the magistrate judge

to consider the in-car video in deciding the motion for summary judgment. The in-car

video captures plaintiff’s entire arrest and belies his allegations of wrongdoing as to the

Southfield defendants. The video shows only four officers involved in plaintiff’s arrest:

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The video shows plaintiff being twice hit in the head area by this unidentified

officer. The magistrate judge ordered the Southfield defendants to identify this officer

before December 12, 2011. (Doc. 133). It is not clear that this has been done. The

Court leaves the matter to the magistrate judge for resolution. 

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(1) Bolash, who was dismissed on summary judgment; (2) Birberick (in uniform); 3) Kerr

(in plain clothes wearing white); and (4) an unidentified officer (wearing a dark colored

shirt and hat).3

 With the exception of the unidentified officer, none of the officers are

seen assaulting plaintiff. The force used by Birberick and Kerr in removing plaintiff from

the minivan, bringing him to the ground, and cuffing him, was reasonable and necessary

under the circumstances. Regarding Smiscik, while plaintiff alleges he directed a racial

slur towards him, this conduct does not constitute excessive force as a matter of law, as

the magistrate judge explained. Overall, reasonable minds could not differ on whether

any of the moving defendants used excessive force against plaintiff. 

V. 

For the reasons stated above, plaintiff’s objections are DENIED. The MJRR is

adopted as the findings and conclusions of the Court, as supplemented above. 

Plaintiff’s motion for summary judgment is DENIED. The Southfield defendants’ motion

for summary judgment is GRANTED. Plaintiff’s claims continue against the unidentified

officer. See n.4, supra. 

SO ORDERED.

Dated: January 10, 2012 S/Avern Cohn 

AVERN COHN

UNITED STATES DISTRICT JUDGE

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08-15253 Ragland v. Raby, et al

Order Denying Plaintiff’s Objections, etc.

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CERTIFICATE OF SERVICE

I hereby certify that a copy of the foregoing document was mailed to Kevin Ragland, 

191565, Cotton Correctional Facility, 3510 N. Elm Street, Jackson, MI 49201 and the

attorneys of record on this date, January 10, 2012, by electronic and/or ordinary mail.

 S/Julie Owens 

Case Manager, (313) 234-5160

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