Belser v. Alton et al

Filing 40

ORDER adopting 38 Report and Recommendation; granting 29 Motion to Dismiss; denying 19 Motion for Preliminary Injunction and 33 Motion for Preliminary Injunction; denying 18 Motion to Appoint Counsel and 34 Motion to Appoint Counsel; denying as moot 37 Motion to Compel and Dismissing Plaintiff's Claims Against Remaining Defendants. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARVIN BELSER,
Case No. 14-13848
Plaintiff,
SENIOR U.S. DISTRICT JUDGE
ARTHUR J. TARNOW

v.
SARAH ALTON, ET AL.,

U.S. MAGISTRATE JUDGE
PATRICIA T. MORRIS

Defendants.
/

ORDER ADOPTING REPORT AND RECOMMENDATION [38] AND
GRANTING DEFENDANTS’ MOTION TO DISMISS [29], DENYING
PLAINTIFF’S MOTIONS FOR PRELIMINARY INJUNCTION [19, 33]
AND FOR APPOINTMENT OF COUNSEL [18, 34], DENYING AS MOOT
DEFENDANT’S MOTION TO COMPEL [37] AND DISMISSING
PLAINTIFF’S CLAIMS AGAINST REMAINING DEFENDANTS
On March 9, 2015, the Magistrate Judge issued a Report and Recommendation
(“R&R”) [38] recommending that the Court grant Defendants’ Motion to Dismiss [29],
deny Plaintiff’s Motions for Preliminary Injunction [19, 33] and for Appointment of
Counsel [18, 34], deny as moot Defendant’s Motion to Compel [37] and dismiss
Plaintiff’s claims against the remaining Defendants. Plaintiff filed an Objection [39]
on March 30, 2015.
For the reasons stated below, the Court ADOPTS the R&R [38]. Defendants’
Motion to Dismiss [29] is GRANTED; Plaintiff’s Motions for Preliminary Injunction

[19, 33] and for Appointment of Counsel [18, 34] are DENIED; Defendant’s Motion
to Compel [37] ] is DENIED AS MOOT, Plaintiff’s claims against the remaining
Defendants are DISMISSED; and Plaintiff’s Objection [39] is OVERRULED.
STATEMENT OF FACTS
The Court adopts the explanation of facts as set out in the R&R [38]. They read
as follows:
Plaintiff is a pro se prisoner currently incarcerated at Marquette Brach
Prison in Marquette, Michigan. The events that gave rise to the allegations in
the Complaint occurred while Plaintiff was incarcerated at the Saginaw
Correctional Facility (“SRF”), in Saginaw, Michigan, and the Chippewa
Correctional Facility (“URF”) in Kincheloe, Michigan.
Plaintiff’s complaint does not organize his claims, but they fall into two
basic categories: (1) Defendants’ failure to provide an air mattress, velcro
shoes, and physical therapy, as stated in grievance SRF-2012-10-1890-12I,
including medical malpractice and negligence, and (2) defendants’ threats that
if Plaintiff did not sign off on the above grievance, he would be “sent up north”
to a prison in Michigan’s upper peninsula, and these threats materialized when
Plaintiff was transferred to the northern prison.

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Plaintiff seeks to “[h]ave all of [his] medical special accommodations
returned, [and to see] . . . a medical assistant.” (Doc. 1 at ID 5.) Plaintiff also
seeks the maximum “amount allowed by the courts, court costs and attorneys
fees and filing fees.” (Doc. 1 at ID 8.)
On December 22, 2104, 2014, [sic.] Defendants Sarah Alton, Susan
McCauley, Melissa LaPlaunt, William Borgerding, Melissa Grabowski, O’Bell
Thomas Winn, Donald Ricumstrict, James Zummer, and Todd McLean moved
to dismiss or for summary judgment. (Doc. 29.) Plaintiff responded on
February 23, 2015. (Doc. 36.) Plaintiff also filed two motions for appointment
of counsel (Docs. 18, 34) and two motions for preliminary injunction and/or
protective order. (Docs. 19, 33.)
In the motion to dismiss or for summary judgment, defendants contend
that Plaintiff’s complaint should be dismissed because Plaintiff failed to
exhaust administrative remedies, failed to state a claim upon which relief can
be granted, failed to allege the personal involvement of several defendants, and
because state officials sued in their official capacity are entitled to Eleventh
Amendment immunity. Based on my recommendation that summary judgment
should be granted on the merits of the claims, I do not reach defendants’
arguments regarding personal involvement or Eleventh Amendment immunity.

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Also, the analysis below applies to the claims against non-moving defendants
Josh Buskirk and Michael Brostoski. Consequently, I recommend dismissing
the claims against them.
LEGAL STANDARD
The Court reviews objections to an R&R on a dispositive issue de novo. 28
U.S.C. § 636(b)(1)(C). “A judge of the court may accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate judge.” Id.
Defendants move to dismiss Plaintiff’s Complaint pursuant to Federal Rules of Civil
Procedure 12(b)(6). Rule 12(b)(6) tests the legal sufficiency of a complaint. To
survive a motion to dismiss or for judgment on the pleadings, a complaint must “state
a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007). “While legal conclusions can provide the framework of a complaint, they
must be supported by factual allegations. When they are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950
(2009).
ANALYSIS
The R&R [38] recommends the Court grant Defendants’ Motion to Dismiss [29]
because Plaintiff has not properly exhausted his administrative remedies. Specifically,

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five of the six grievances he filed were still pending when he filed this action. The
R&R [38] goes on to state that even if Plaintiff’s claims were not procedurally barred
they would fail on the merits. The R&R [38] further recommends the Court conclude
that Plaintiff’s sixth grievance—which he properly exhausted—fails on its merits.
Plaintiff’s Objection [39] recites the precedent from Jones v. Bock, 549 U.S. 199
(2007) and seems to agree with the R&R’s [38] recommendation that the Court should
dismiss his non-exhausted claims.
The remainder of Plaintiff’s Objection [39] is not responsive to the R&R’s [38]
analysis. For the foregoing reasons and the reasons contained in the R&R [38] the
Court HEREBY ADOPTS the R&R [38]. Accordingly,
IT IS ORDERED that Defendants’ Motion to Dismiss [29] is GRANTED;
IT IS FURTHER ORDERED that Plaintiff’s Motions for Preliminary
Injunction [19, 33] are DENIED;
IT IS FURTHER ORDERED that Plaintiff’s Motions for Appointment of
Counsel [18, 34] are DENIED;
IT IS FURTHER ORDERED that Defendant’s Motion to Compel [37] is
DENIED AS MOOT,
IT IS FURTHER ORDERED that Plaintiff’s claims against the remaining
Defendants are DISMISSED;
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IT IS FURTHER ORDERED that Plaintiff’s Objection [39] is OVERRULED.
THIS CASE IS CLOSED.
SO ORDERED.
s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge

Dated: July 23, 2015

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