Acrey v. Zesto et al

Filing 28

ORDER Adopting 27 Report and Recommendation for 16 Motion to Dismiss. Signed by District Judge Terrence G. Berg. (Chubb, A)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KIRK ACREY,
Plaintiff,

Case No. 13-11214
HON. TERRENCE G. BERG
HON. PATRICIA T. MORRIS

v.
ZESTOS, and MALATINSKY,
Defendants.
/

ORDER ADOPTING REPORT AND RECOMMENDATION (Dkt. 27)
Plaintiff Kirk Acrey, a federal inmate proceeding pro se, has filed the instant
civil-rights action pursuant to Bivens v. Six Unknown Named Agents of the Fed.
Bureau of Narcotics, 403 U.S. 388 (1971), seeking damages for an alleged denial of
medical care that occurred while he was confined at the Federal Correctional
Institution in Milan, Michigan.
On June 26, 2013, the Court entered an order of partial summary dismissal,
terminating the majority of the initially-named defendants; however, the case was
allowed to proceed against Defendants Zestos and Malatinsky. On February 14,
2014, those Defendants filed a motion to dismiss the complaint and, in the
alternative, for summary judgment (Dkt. 16). That motion was fully briefed, and on
May 6, 2014, the Court referred the case to Magistrate Judge Patricia T. Morris.
This matter is now before the Court on the Magistrate Judge’s August 7,
2014 Report and Recommendation (Dkt. 27), recommending that the Court GRANT
Defendants’ alternative motion for summary judgment

The law provides that either party may serve and file written objections
“[w]ithin fourteen days after being served with a copy” of the report and
recommendations. 28 U.S.C. § 636(b)(1). The district court will make a “de novo
determination of those portions of the report . . . to which objection is made.” Id.
Where, as here, neither party objects to the report, the district court is not obligated
to independently review the record. See Thomas v. Arn, 474 U.S. 140, 149-52
(1985). Nevertheless, having carefully reviewed Defendants’ motion, Plaintiff’s
response to that motion, and Defendants’ reply, the Court does hereby ACCEPT
and ADOPT Magistrate Judge Morris’ Report and Recommendation of August 7,
2014, as this Court’s findings of fact and conclusions of law.
Therefore, Defendants’ alternative motion for summary judgment on the
basis of qualified immunity (Dkt. 16) is GRANTED.
SO ORDERED.
Dated: September 8, 2014

s/Terrence G. Berg
TERRENCE G. BERG
UNITED STATES DISTRICT JUDGE
Certificate of Service

I hereby certify that this Order was electronically submitted on September 8,
2014, using the CM/ECF system; a copy of this Order was also addressed to Plaintiff
and mailed to 19403-424 Leavenworth U.S. Penitentiary, Inmate Mail/Parcels, P.O.
Box 1000, Leavenworth, Kansas 66048.
s/A. Chubb
Case Manager

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