Boutire v. Johnson et al

Filing 32

OPINION AND ORDER granting 29 Motion to Dismiss; adopting 31 Report and Recommendation on 15 Motion for Summary Judgment,, 31 Report and Recommendation, 29 Motion to Dismiss, ; granting 15 Motion for Summary Judgment. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ALPHONSO BOUTIRE,
Plaintiff,
v.

Case No. 12-cv-14611
Honorable Patrick J. Duggan

LAKREESE R. JOHNSON and
GERALD MITCHELL,
Defendants.
__________________________________/
OPINION AND ORDER GRANTING
DEFENDANT MITCHELL’S MOTION FOR SUMMARY JUDGMENT
AND DEFENDANT JOHNSON’S MOTION TO DISMISS
Plaintiff initiated this lawsuit against Defendants on October 18, 2012,
alleging violations of his Eighth Amendment rights while he was a Michigan
Department of Corrections’ inmate. On January 4, 2013, Defendant Mitchell filed
a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56.
On May 2, 2013, Defendant Johnson filed a motion to dismiss pursuant to Federal
Rule of Civil Procedure 12(b)(6). This Court has referred the matter to Magistrate
Judge Charles Binder for all pretrial proceedings, including a report and
recommendation (“R&R”) on all dispositive motions pursuant to 28 U.S.C.
§ 636(b)(1)(B). (ECF No. 16.) On June 27, 2013, Magistrate Judge Binder issued
his R&R recommending that this Court grant Defendants’ motions. (ECF No. 31.)
In his R&R, Magistrate Judge Binder applies the standard for review under

Rule 12(b)(6) and concludes that Plaintiff fails to state a viable Eighth Amendment
claim. (Id. at 6-8.) At the conclusion of his R&R, Magistrate Judge Binder
advises the parties that they may object to and seek review of the R&R within
fourteen days of service upon them. (Id. at 9.) He further specifically advises the
parties that “[f]ailure to file specific objections constitutes a waiver of any further
right to appeal.” (Id. at 9.) Neither party filed objections to the R&R.
The Court has carefully reviewed the R&R and concurs with the conclusions
reached by Magistrate Judge Binder. The Court therefore adopts the R&R.
Accordingly,
IT IS ORDERED that Defendant Gerald Mitchell’s motion for summary
judgment (ECF No. 15) is GRANTED;
IT IS FURTHER ORDERED, that Defendant Lakreese R. Johnson’s
motion to dismiss (ECF No. 29) is GRANTED.
Dated: August 12, 2013

s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE

Copies to:
Alphonso Boutire, #198000
450 N Cooper
Apt C (2)
Jackson, MI 49201

Kimberly A. Koester, Esq.
Ronald W. Chapman, Esq.
Kevin R. Himebaugh, Esq.
Magistrate Judge Charles Binder

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