Hoosier v. Liu et al

Filing 42

ORDER Accepting Report and Recommendation to Grant the Construed Motion for Partial Summary Judgment filed by Defendants Wendy Liu, Shi-Yu Tan, M.D., Rickey Coleman, M.D., and Steven Bergman, M.D. 26 and to Grant in Part the Motion for Summary Judgment filed by Defendants Vicki Carlson and Renyu Xue 35 for 40 Report and Recommendation, Signed by District Judge Denise Page Hood. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DWAYNE HOOSIER,
Plaintiff,

CASE NO. 16-10688
HON. DENISE PAGE HOOD

v.
WENDY LIU, et al.,
Defendants.
/

ORDER ACCEPTING REPORT AND RECOMMENDATION
TO GRANT THE CONSTRUED MOTION FOR PARTIAL SUMMARY
JUDGMENT FILED BY DEFENDANTS WENDY LIU, N.P., SHI-YU TAN,
M.D., RICKEY COLEMAN, M.D., AND STEVEN BERGMAN, M.D. (DE 26)
AND TO GRANT IN PART THE MOTION FOR SUMMARY JUDGMENT
FILED BY DEFENDANTS VICKI CARLSON AND RENYU XUE (DE 35)

This matter is before the Court on a Report and Recommendation (Doc # 40)
filed by Magistrate Judge Anthony P. Patti on a Partial Motion for Judgment on the
Pleadings filed by Defendants Wendy Liu, Shi-Yu Tan, Rickey Coleman, and
Steven Bergman (Doc # 26), and a Motion for Summary Judgment filed by
Defendants Vicki Carlson and Renyu Xue (Doc # 35). To date, no objections were
filed to the Report and Recommendation and the time to file such has passed.
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
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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 judge.” 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,
155 (1985); Howard v. Sec’y of Health & Human Servs., 932 F.2d 505, 508-09
(6th Cir. 1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).
After review of the Magistrate Judge’s Report and Recommendation, the
Court finds that his findings and conclusions are correct. The Court agrees with
the Magistrate Judge that Defendants’ Motion for Partial Judgment on the
Pleadings (Doc # 26) is properly construed as a motion for partial summary
judgment to resolve the question of whether Plaintiff failed to exhaust his
administrative remedies, an affirmative defense raised by Defendants.
The Court further agrees with the Magistrate Judge that Plaintiff failed to
properly exhaust his administrative remedies as to his claims against Shi-Yu Tan,
Rickey Coleman, Steven Bergman, and Vicki Carlson, and some of his claims
against Wendy Liu. The Court will grant summary judgment in their favor. The
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Court will dismiss Shi-Yu Tan, Rickey Coleman, Steven Bergman, and Vicki
Carlson from this action.
The Court, however, will not dismiss the claim against Renyu Xue and will
deny her motion for summary judgment. The Court agrees with the Magistrate
Judge that Plaintiff’s grievance against her appears to have been properly
exhausted.
Accordingly,
IT IS ORDERED that Magistrate  Judge Anthony P. Patti’s Report and
Recommendation (Doc # 40) is ACCEPTED and ADOPTED as this Court’s
findings of fact and conclusions of law.
IT IS FURTHER ORDERED that the construed Motion for Partial Summary
Judgment filed by Defendants Wendy Liu, Shi-Yu Tan, Rickey Coleman, and
Steven Bergman (Doc # 26) is GRANTED for the reasons set forth above.
IT IS FURTHER ORDERED that the Motion for Summary Judgment filed
by Defendants Vicki Carlson and Renyu Xue (Doc # 35) is GRANTED IN PART
as to Defendant Vicki Carlson, and DENIED IN PART as to Defendant Renyu
Xue for the reasons set forth above.
IT IS FURTHER ORDERED that Defendants Shi-Yu Tan, Rickey Coleman,
Steven Bergman, and Vicki Carlson are DISMISSED from this action. Defendants

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Wendy Liu, Renyu Xue, Karen Rhodes, William Borgerding, Badawi Abdellatif,
Kim Farris, and Jane Doe remain.
IT IS FURTHER ORDERED that this matter is referred back to Magistrate
Judge Anthony P. Patti as to the remaining Defendants for all pretrial proceedings,
including a hearing and determination of all non-dispositive matters pursuant to 28
U.S.C. § 636(b)(1)(A) and/or a report and recommendation on all dispositive
matters pursuant to 28 U.S.C. § 636(b)(1)(B).

__________________________
DENISE PAGE HOOD
Chief Judge

DATED:

I hereby certify that a copy of the foregoing document was served upon counsel of
Record, on February 15, 2017, by electronic and/or ordinary mail.
s/Teresa McGovern
Case Manager Generalist

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