Emery v. Burtch

Filing 76

ORDER Adopting 71 Report and Recommendation for Denying 63 Motion for Summary Judgment filed by Joseph R. Burtch, MD. Signed by District Judge Sean F. Cox. (JMcC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Neil Emery and Ryan Burgdorf,
Plaintiffs,
v.

Case No. 15-11113

Joseph R. Burtch, D.O.,

Sean F. Cox
United States District Court Judge

Defendant.
______________________________/
ORDER
ADOPTING 9/22/17 REPORT AND RECOMMENDATION
Acting through Counsel, Plaintiffs Neil Emery and Ryan Burgdorf (“Plaintiffs”) filed this
§ 1983 civil rights action against Defendant Joseph R. Burtch, D.O., alleging that Defendant
Burtch sexually assaulted them while providing medical care to them while they were
incarcerated, in violation of the Eight Amendment. The matter was referred to Magistrate Judge
David Grand for all pretrial matters.
On March 17, 2017, Defendant Burtch filed a Motion for Summary Judgment. After full
briefing by the parties and oral argument, on September 22, 2017, Magistrate Judge Grand
issued a fourteen page Report and Recommendation (“the R&R”) wherein he explained the
standard of review that applies to the motion, set forth the governing legal standards, and then
evaluated Defendant’s arguments. Magistrate Judge Grand concluded that, viewing the evidence
in favor of Plaintiffs, the non-moving party, that: 1) Plaintiffs have established a genuine issue of
material fact as to whether the objective prong of the analysis is met, including proof that the
alleged conduct actually occurred and proof of injury; and 2) Plaintiffs have established a

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genuine issue of material fact as to whether the subjective prong of the analysis has been met.
Pursuant to FED. R. CIV. P. 72(b), a party objecting to the recommended disposition of a
matter by a Magistrate Judge must filed objections to the R&R within fourteen (14) days after
being served with a copy of the R&R.
On October 2, 2017, Defendant Burtch filed timely Objections the R&R. On October 14,
2017, Plaintiffs filed a Response to the Objections, and on October 20, 2017, Defendant filed a
reply brief.
Having carefully review the magistrate judge’s R&R, and having considered Defendant
Burtch’s objections to it, the Court concludes that the magistrate judge applied the correct legal
standard and concurs with both his analysis and conclusions.
Accordingly, the Court ADOPTS the magistrate judge’s September 22, 2017 R&R. IT
IS FURTHER ORDERED that Defendant Burtch’s Motion for Summary Judgment is
DENIED.
IT IS SO ORDERED.
s/Sean F. Cox
Sean F. Cox
United States District Judge
Dated: January 25, 2018
I hereby certify that a copy of the foregoing document was served upon counsel of record on
January 25, 2018, by electronic and/or ordinary mail.
s/Jennifer McCoy
Case Manager

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