Koetje v. Norton et al

Filing 74

ORDER Accepting 59 , 61 Reports and Recommendations, Order Denying Plaintiff's 47 Motion for Injunctive Relief, Order Granting Defendant Squier's 43 Motion to Dismiss and Order Dismissing Defendant Squier Only. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DONNA KOETJE,
Plaintiff,

Case No. 13-12739
Honorable Denise Page Hood

v.
AMANDA NORTON, CHIEF MEDICAL
OFFICER STEIVE, and SQUIER OF
PRISON HEALTH SERVICES/CORIZON,
Defendants.
_______________________________/

ORDER ACCEPTING REPORTS AND RECOMMENDATIONS,
ORDER DENYING PLAINTIFF’S MOTION FOR
INJUNCTIVE RELIEF,
ORDER GRANTING DEFENDANT SQUIER’S
MOTION TO DISMISS
and
ORDER DISMISSING DEFENDANT SQUIER ONLY

I.

BACKGROUND/STANDARD OF REVIEW
This matter is before the Court on a Report and Recommendation filed by

Magistrate Judge Patricia Morris on Plaintiff Donna Koetjze’s Motion for Injunctive
Relief. (Doc. No. 59) No objections were filed to this Report and Recommendation.
Also before the Court is a Report and Recommendation on Defendant Squier’s
Motion to Dismiss for Failure to Exhaust Administrate Remedies. (Doc. No. 61)

Plaintiff filed Objections to this Report and Recommendation on July 2, 2014. (Doc.
No. 66)
The standard of review by the district court when examining a Report and
Recommendation is set forth in 28 U.S.C.§ 636. This Court “shall make a de novo
determination of those portions of the report or the specified proposed findings or
recommendations to which an objection is made.” 28 U.S.C. § 636(B)(1)(c). The
Court “may accept, reject or modify, in whole or in part, the findings or
recommendations made by the Magistrate.” Id. In order to preserve the right to
appeal the Magistrate Judge’s recommendation, a party must file objections to the
Report and Recommendation within fourteen (14) days of service of the Report and
Recommendation. Fed. R. Civ. P 72(b)(2). Failure to file specific objections
constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140
(1985); Howard v. Secretary of Health and Human Servs., 932 F2d 505 (6th Cir.
1991); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).
II.

MOTION FOR INJUNCTIVE RELIEF
As to Plaintiff’s Motion for Injunctive Relief, after review of the Magistrate

Judge’s Report and Recommendation, the motion, the response and reply briefs, the
Court finds that her findings and conclusions are correct. The Court agrees with the
Magistrate Judge that after weighing the factors relevant to determining whether
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injunctive relief should be issued, Plaintiff has not shown she is entitled to injunctive
relief at this time. As noted by the Magistrate Judge, the record indicates that
Plaintiff agreed to discontinue taking Tegretol. (R&R, Doc. No. 59, Pg ID 959) The
Court accepts the Magistrate Judge’s recommendation that Plaintiff’s Motion for
Injunctive Relief be denied.
III.

MOTION TO DISMISS
Regarding Defendant Squire’s Motion to Dismiss, the Court agrees with the

Magistrate Judge that the motion should be considered as a Motion for Summary
Judgment in light of the documents submitted with the motion. The Court also agrees
with the Magistrate Judge’s findings that Plaintiff failed to exhaust the grievances
against Defendant Squier as to the alleged denial of physical therapy.
The grievances Plaintiff exhausted through Step III did not identify or name
Defendant Squier, which the Court agrees is fatal to Plaintiff’s claim against
Defendant Squier. In her Objections and Response to the Motion to Dismiss, Plaintiff
submitted a grievance form no. WHV-13-073091-28G which identifies Defendant
Squier. However, Plaintiff has not shown that this grievance, ending in 28G, went
through Step III or that the MDOC refused to proceed any further than Step I.
Plaintiff’s exhibits submitted with her Response and Objections only show that she
requested to proceed to Step II only as to grievance form no. WHV-13-073091-28F,
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not the grievance form ending in 28G. (Obj. Doc. No. 66, Pg ID #s 1061-67; Resp.,
Doc. No. 56, Pg ID # 900-911). In her affidavit submitted with her Response, she
asserts that she “just filed three grievances” and that two of the three were processed
and one was denied. (Aff., Doc. No. 56, Pg ID 905) The rejected grievance form no.
was WHV-13-073092-28F, not the form ending 28G which identifies Defendant
Squier. The grievance form ending in 28F was not submitted by Plaintiff in her
Response or Objections. The MDOC Prisoner Step III Grievance Report submitted
by Defendant Squier does not show that WHV-13-073091-28F or 28G were
submitted through Step III. (Resp., Doc. No. 43-2, Pg ID #s 689-694) There is no
argument presented or evidence submitted that the forms ending in 28F and 28G are
the same grievance forms.
Reviewing the briefs and documents submitted by the parties, the Court finds
that Defendant Squier has shown that Plaintiff did not exhaust her administrative
remedies through Step III as to her claim against Defendant Squier. Plaintiff’s
submissions with her Response and Objections fail to rebut Defendant Squier’s
argument that Plaintiff failed to exhaust her administrative remedies as to claims
against Defendant Squier. The Court accepts the Magistrate Judge’s recommendation
that Defendant Squier’s Motion to Dismiss, considered as a Motion for Summary
Judgment, be granted.
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IV.

CONCLUSION
For the reasons set forth above,
IT IS ORDERED that Magistrate Judge Patricia Morris’ Reports and

Recommendations (Nos. 59 and 61) are ACCEPTED and ADOPTED as this Court’s
findings of fact and conclusions of law.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Injunctive Relief (No.
47) is DENIED.
IT IS FURTHER ORDERED that Defendant Squier’s Motion to Dismiss for
Failure to Exhaust Administrative Grievances, considered as a Motion for Summary
Judgment (No. 43) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Objections (No. 66) are
OVERRULED.
IT IS FURTHER ORDERED that Defendant Squier only is DISMISSED from
this action.
Dated: September 22, 2014

s/Denise Page Hood
Denise Page Hood
United States District Judge

I hereby certify that a copy of the foregoing document was served upon counsel of
record on September 22, 2014, by electronic and/or ordinary mail.
s/LaShawn R. Saulsberry
Case Manager
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