Black v. Michigan Department of Corrections
ORDER Adopting 23 Report and Recommendation granting in part and denying in part 18 Motion for Summary Judgment filed by Michigan Department of Corrections Signed by District Judge Bernard A. Friedman. (CMul)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
Case No. 10-11211
HON. BERNARD A. FRIEDMAN
MAGISTRATE JUDGE PAUL J. KOMIVES
MICHIGAN DEPARTMENT OF
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Magistrate Judge Paul J. Komives’ Report and
Recommendation (“R and R”) dated February 29, 2012, recommending that the Court grant in
part Defendant Michigan Department of Corrections’ (“MDOC”) second motion for summary
judgment. Further, the R and R recommends that the Court not dismiss this matter, as the
granting of summary judgment will not encompass the entirety of Plaintiff’s claim for relief.
Neither party filed an objection to the R and R.
This Court has had an opportunity to fully review this matter and hereby adopts and
incorporates Magistrate Judge Komives’ procedural history and factual background into this
Opinion, as contained in pages 2 through 13 in the R and R. Further, the Court has fully
reviewed the parties’ filings, and believes that the Magistrate Judge has reached the correct
conclusions for the proper reasons.
Plaintiff’s complaint makes claims pursuant to 42 U.S.C. § 1983 regarding his treatment
while incarcerated. Before the Court is MDOC’s Rule 56 motion for summary judgment for
failure to exhaust administrative remedies. The Court has reviewed the pleadings and the R and
R, and finds that Magistrate Judge Komives reached the right conclusions for the proper reasons.
As a result of the Court’s February 15, 2011 Order granting in part and denying in part
Defendant’s motion to dismiss and motion for summary judgment, Plaintiff’s only remaining
claim is regarding his misconduct points. Defendant’s instant motion argues that Plaintiff did
not properly exhaust his administrative remedies. The Court agrees with Magistrate Judge
Komives’ conclusion that Defendant is entitled to summary judgment as to Plaintiff’s first claim
for relief to the extent that it alleges that the June 24, 2009 misconduct points were wrongfully
issued, because Plaintiff has not exhausted his administrative remedies as to such claim.
Additionally, the Court agrees with Magistrate Judge Komives’ interpretation of
Plaintiff’s first claim as also being in part for a non-grievable offense, for which available
administrative remedies need not be exhausted. Therefore, to the extent that Plaintiff’s first
claim for relief is for a non-grievable offense, Defendant is not entitled to summary judgment on
the basis of exhaustion.
IT IS ORDERED that Magistrate Judge Komives’ Report and Recommendation dated
February 29, 2012 is hereby ACCEPTED AND ADOPTED.
IT IS FURTHER ORDERED that Defendant’s Second Motion for Summary Judgment is
GRANTED IN PART and DENIED in part.
Dated: March 23, 2012
s/Bernard A. Friedman_______________
BERNARD A. FRIEDMAN
UNITED STATES DISTRICT JUDGE
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