Threet v. Phillips et al

Filing 37

ORDER rejecting 28 Report and Recommendation and dismissing as moot 21 Motion for Summary Judgment filed by Hurst, Ryan, Bruener, Miller, Jackson, Vandenburg, Richardson, Parish, Jacobson, D Phillips, granting 27 Motion for Leave to File and granting 31 Motion for Leave to File filed by Michael Threet, Signed by District Judge Bernard A. Friedman. (CMul)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL THREET,
Plaintiff,

Civil Action No. 14-cv-13345

vs.

HON. BERNARD A. FRIEDMAN

D. PHILLIPS, et al.,
Defendants.
___________________/
ORDER GRANTING PLAINTIFF’S MOTIONS FOR
LEAVE TO FILE AN AMENDED COMPLAINT
and
ORDER REJECTING MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION AS MOOT
This matter is presently before the Court on defendants’ motion for summary
judgment [docket entry 21] and plaintiff’s motions for leave to file an amended complaint [docket
entries 27 & 31].
Plaintiff seeks leave to file an amended complaint to “correct errors in his research,
writing, and calculations.” Pl.’s Mot. Defendants have not responded to these motions and the time
for them to do so has expired. As leave to amend must be freely granted, see, e.g., Shell v. Marks
Oil Co., 830 F.2d 68 (6th Cir. 1987), and defendants apparently do not oppose it, the Court shall
grant plaintiff’s motions and deem the proposed amended complaint [docket entry 30] to be filed
as of the date of this order.
As to defendants’ motion for summary judgment, Magistrate Judge R. Steven Whalen
has submitted a Report and Recommendation (“R&R”) in which he recommends that defendants’
motion, which he construes as an unenumerated motion under Fed. R. Civ. P. 12, be denied. Neither

party has objected to the R&R and the objection period has expired.
The Court agrees with the magistrate judge’s application of Boyd v. Corrs. Corp. of
Am., 380 F.3d 989, 994 (6th Cir. 2006), to refute defendants’ argument that plaintiff failed to
properly exhaust his administrative remedies because he filed his complaint before receiving a Step
III grievance response. However, defendants’ motion relates to a complaint that has now been
superseded by an amended complaint. The Court therefore rejects the R&R on the basis that the
underlying motion is moot.
SO ORDERED.

_s/ Bernard A. Friedman________________
BERNARD A. FRIEDMAN
SENIOR UNITED STATES DISTRICT JUDGE
Dated: May 22, 2015
Detroit, Michigan

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