Howard v. Gardener et al

Filing 57

ORDER adopting Report and Recommendation 54 and denying defendants' Motion for Summary Judgment 45 . Signed by District Judge George Caram Steeh. (MBea)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRUCE HOWARD,
Plaintiff,
CASE NO. 10-CV-11470
v.
HON. GEORGE CARAM STEEH
MAG. JUDGE LAURIE J. MICHELSON
BETH GARDON, et al.,
Defendants.
________________________________/
ORDER ACCEPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
(#54) AND DENYING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (#45)
Plaintiff Bruce Howard, a prisoner currently incarcerated at the Kinross
Correctional Facility in Michigan’s Upper Peninsula, filed this prisoner civil rights case
on April 13, 2010. On March 9, 2011, the court adopted the magistrate judge’s report
and recommendation and found: (1) defendants Gardon, Chadwell, and Lashley were
not entitled to summary judgment on the basis that plaintiff failed to exhaust his
administrative remedies; (2) defendants Gardon, Chadwell, and Lashley were not
entitled to dismissal based on plaintiff’s failure to state claims of retaliation, deliberate
indifference, fraud and/or conspiracy against them; (3) defendants Scutt and Caruso
were entitled to dismissal based upon plaintiff’s failure to state a claim upon which relief
may be granted; (4) defendants Jones and Russell were entitled to sua sponte
dismissal based upon plaintiff’s failure to state a claim of fraud against them; and (5)
defendants’ request for an award of costs was premature. In the report and
recommendation, the magistrate judge noted the evidence presented by plaintiff to

counter defendants’ evidence on the exhaustion issue and also noted defendants’
failure to address the specific issue of exhaustion as to defendant Lashley. The court
denied defendants’ request for summary judgment on the exhaustion issue without
prejudice. On August 8, 2011, defendants filed another motion for summary judgment
on the exhaustion issue. Because defendants merely made the same argument as in
the prior motion for summary judgment, and presented no additional evidence, the
magistrate judge issued a report and recommendation to deny defendants’ motion for
summary judgment. On October 17, 2011, defendants filed objections to the magistrate
judge’s report and recommendation. Defendants argue this court’s March 9, 2011 order
denied defendants’ motion for summary judgment without prejudice in order to allow
plaintiff time to obtain discovery necessary to oppose the motion. Defendants therefore
argue that plaintiff should bear the burden of providing additional evidence to oppose
the motion. However, the magistrate judge correctly recognized that a fact issue
regarding exhaustion precluded summary judgment on defendants’ first motion for
summary judgment and therefore precludes summary judgment on defendants’ pending
motion for summary judgment. The fact issue regarding whether plaintiff exhausted his
grievance regarding his transfer to Kinross Correctional Facility, discussed on pages 3-4
of the October 3, 2011 report and recommendation, has not been resolved through the
presentation of additional evidence. Thus, the magistrate judge correctly recommended
that this court deny defendants’ motion for summary judgment as defendants have not
carried their burden of showing that there is no genuine issue of material fact. For the
reasons stated above, the court hereby ACCEPTS and ADOPTS the magistrate judge’s
report and recommendation as its findings and conclusions in this matter and DENIES
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defendants’ motion for summary judgment.
SO ORDERED.

S/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
Dated: November 9, 2011
CERTIFICATE OF SERVICE
Copies of this Order were served on the attorneys of record on November 9, 2011, by
electronic and/or ordinary mail and also to Bruce Howard #233473, Kinross Correctional
Facility, 16770 S. Watertower Drive, Kincheloe, MI 49788.

S/Josephine Chaffee
Secretary/Deputy Clerk

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