Stringer v. Fyre et al

Filing 37

ORDER Allowing Expansion of the Record. (Supplemental Affidavit or Declaration due by 12/15/2017.) Signed by District Judge Matthew F. Leitman. (HMon)

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

Case No. 17-cv-10999
Hon. Matthew F. Leitman

v.
FYRE, SHIELFIED AND KING,
Defendants.
_________________________________/
ORDER ALLOWING EXPANSION OF THE RECORD
Plaintiff Dwayne Stringer is a state prisoner confined at the Macomb
Correctional Facility in New Haven, Michigan. On March 28, 2017, Stringer filed
this prisoner civil-rights action in which he alleges that he was “brutal[l]y attacked”
by the Defendants, three correctional officers. (See ECF #1 at Pg. ID 3.)
On June 8, 2017, prior to the start of discovery, Defendants moved for
summary judgment on the basis that Stringer did not exhaust his administrative
remedies. (See ECF #15.)

More specifically, Defendants asserted that under

applicable policies of the Michigan Department of Corrections, Stringer failed to
complete a required grievance process before he filed this action. (See id.)
The assigned Magistrate Judge agreed with the Defendants. On August 9,
2017, she issued a Report and Recommendation in which she recommended that the
court grant Defendants’ summary judgment motion and dismiss Stringer’s
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Complaint without prejudice (the “R&R”). (See ECF #21.) The Magistrate Judge
concluded that “[i]n light of the present record, [Stringer] appears not to have
exhausted [his] administrative remedies against [the] Defendant[s].” (Id. at Pg. ID
88.)
Stringer filed timely objections to the R&R on October 11, 2017. (See ECF
#31.) In the Objections, Stringer insists that he “made every effort to exhaust [his
administrative remedies] only to have the Defendant’s [sic] directly or indirectly
interfere[] with the [grievance] process.” (Id. at Pg. ID 133.)
The record before the Court does not include any evidence as to how
Defendants allegedly interfered with Stringer’s ability to exhaust his administrative
remedies and complete the grievance process. However, when reviewing a report
and recommendation, the Court may expand in the record in order to “receive further
evidence.” 28 U.S.C. § 636(b)(1). See also Muhammad v. Close, 2009 WL 875520,
at *2 (6th Cir. Apr. 20, 2009) (citing with approval decisions of Fifth and Ninth
Circuits holding that “district courts have the discretion … to consider evidence
presented for the first time in a party’s objections to a magistrate judge's report”);
Bodman v. Dennis, 2013 WL 2458383, at ** 2-3 (W.D. Mich. June 6, 2013)
(collecting cases from the First, Second, Third, Fifth, Seventh, Ninth and Eleventh
Circuits recognizing a district court’s discretion to consider new evidence when
resolving objections to a magistrate judge’s report and recommendation).

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Accordingly, the Court will allow Stringer to supplement and expand the
record with respect to his Objections. By no later than December 15, 2017, Stringer
may file with the Court either a notarized affidavit or a declaration under the penalty
of perjury pursuant to 28 U.S.C § 17461 that sets forth in specific detail all of the
facts that support his allegation that the Defendants allegedly interfered with his
ability to complete the grievance process. The affidavit or sworn declaration shall
be typed2 or hand-written in a legible format, meaning that if Stringer chooses the
hand-writing option, he shall (1) write on every other line of his paper (i.e., he must
leave a blank line in between the lines of text that he writes); (2) use both uppercase
and lowercase letters (i.e., he must not use all capital letters); and (3) avoid writing
within one inch of the top or bottom of each page. The Court imposes these

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28 U.S.C. § 1746(2) provides: Wherever, under any law of the United States or
under any rule, regulation, order, or requirement made pursuant to law, any matter
is required or permitted to be supported, evidenced, established, or proved by the
sworn declaration, verification, certificate, statement, oath, or affidavit, in writing of
the person making the same (other than a deposition, or an oath of office, or an oath
required to be taken before a specified official other than a notary public), such
matter may, with like force and effect, be supported, evidenced, established, or
proved by the unsworn declaration, certificate, verification, or statement, in writing
of such person which is subscribed by him, as true under penalty of perjury, and
dated, in substantially the following form:
(2) If executed within the United States, its territories, possessions, or
commonwealths: “I declare (or certify, verify, or state) under penalty of perjury that
the foregoing is true and correct. Executed on (date). (Signature)”.
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Stringer has previously filed typed filings with the Court. (See Objections, ECF
#31.)
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requirements for Stringer’s benefit so that the Court can discern and fully consider
the content of his affidavit or sworn declaration.
If Stringer files such an affidavit or sworn declaration as set forth above by
December 15, 2017, the Court will consider that submission when ruling upon his
Objections to the R&R.
IT IS SO ORDERED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

Dated: November 14, 2017

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on November 14, 2017, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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