Little v. Christiansen et al

Filing 80

OPINION and ORDER Accepting and Adopting 59 the Magistrate Judge's May 3, 2024 Report and Recommendation in part and Remanding for Consideration of New Evidence. Signed by District Judge F. Kay Behm. (KCol)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DARTAGNAN LITTLE,
v.

Case No. 22-12222
F. Kay Behm
United States District Judge

Plaintiff,

Kimberly G. Altman
United States Magistrate Judge

K. WILLIAMS, et al.,
Defendants.
___________________________ /

OPINION AND ORDER ACCEPTING AND ADOPTING THE
MAGISTRATE JUDGE’S MAY 3, 2024 REPORT AND
RECOMMENDATION IN PART AND REMANDING FOR
CONSIDERATION OF NEW EVIDENCE (ECF No. 59)
I.

PROCEDURAL HISTORY
Currently before the court is Magistrate Judge Kimberly G. Altman’s May 3,

2024 Report and Recommendation (R&R). (ECF No. 59). 1 Magistrate Judge
Altman recommends granting in part and denying in part Defendants’ motion for
summary judgment based on exhaustion and denying Plaintiff’s motion for
restraining order and sanctions. (ECF Nos. 39, 54). Plaintiff filed a “Motion to
Vacate Order to Dismiss Defendant K. Parsons from Action” and “Objections to
1 The court previously entered an order adopting the R&R as no objections were filed.

(ECF No. 61). Plaintiff filed a motion for reconsideration, indicating that he did not timely
receive the R&R. The court granted the motion for reconsideration and allowed Plaintiff to file
objections to the R&R. (ECF No. 75).
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Defendant Parsons Motion to Dismiss Her From Action.” (ECF No. 76). The court
construes this filing as objections to the Magistrate Judge’s R&R. Defendants
have filed a response to the Objections. (ECF No. 79).
For the reasons set forth below, the Court ACCEPTS and ADOPTS the
Magistrate Judge’s Report and Recommendation, in part (ECF No. 59), REMANDS
the issue of whether the court should consider the newly filed evidence that
Plaintiff exhausted his administrative remedies as to Defendant Parsons (ECF No.
39), and DENIES Plaintiff’s motion for a restraining order and sanctions (ECF No.
54).
II.

LEGAL STANDARD
A party may object to a magistrate judge’s report and recommendation on

dispositive motions, and a district judge must resolve proper objections under a
de novo standard of review. 28 U.S.C. § 636(b)(1)(B)-(C); Fed. R. Civ. P. 72(b)(1)(3). This court “may accept, reject or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.” Id. “For an objection to be
proper, Eastern District of Michigan Local Rule 72.1(d)(1) requires parties to
‘specify the part of the order, proposed findings, recommendations, or report to
which [the party] objects’ and to ‘state the basis for the objection.’” Pearce v.
Chrysler Grp. LLC Pension Plan, 893 F.3d 339, 346 (6th Cir. 2018). Objections that
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dispute the general correctness of the report and recommendation are improper.
Miller v. Currie, 50 F.3d 373, 380 (6th Cir. 1995).
Moreover, objections must be clear so that the district court can “discern
those issues that are dispositive and contentious.” Id. (citing Howard v. Sec’y of
Health and Human Servs., 932 F.2d 505, 509 (6th Cir. 1991)); see also Thomas v.
Arn, 474 U.S. 140, 147 (1985) (explaining that objections must go to “factual and
legal” issues “at the heart of the parties’ dispute”). In sum, the objections must
be clear and specific enough that the court can squarely address them on the
merits. See Pearce, 893 F.3d at 346. And, when objections are “merely
perfunctory responses . . . rehashing . . . the same arguments set forth in the
original petition, reviewing courts should review [a Report and Recommendation]
for clear error.” Ramirez v. United States, 898 F.Supp.2d 659, 663 (S.D.N.Y. 2012);
see also Funderburg v. Comm’r of Soc. Sec., No. 15-10068, 2016 WL 1104466, at
*1 (E.D. Mich. Mar. 22, 2016) (Hood, J.) (noting that the plaintiff’s objections
merely restated his summary judgment arguments, “an approach that is not
appropriate or sufficient”).
III.

ANALYSIS
In the report and recommendation, the Magistrate Judge concluded that

Little failed to exhaust his administrative remedies against Parsons. He never
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filed a grievance naming Parsons and never requested a grievance form from
Parsons (Little was on modified access and was required to request forms) so that
he could file a grievance against her. (ECF No. 59, PageID.411). Judge Altman
observed that while Little may have considered it fruitless to attempt to request a
form from Parsons in order to file a grievance against her, he was required under
the law to at least try. Id. at PageID.412; Stevens v. Potila, 2015 WL 1245889, at
*3 (E.D. Mich. Mar. 18, 2015) (“A prisoner’s subjective belief that the grievance
process would be ineffective cannot excuse failure to exhaust the prison
grievance procedure prior to filing suit.”). Plaintiff objects to the Report and
Recommendation that defendant Parsons should be dismissed from this action by
producing never before seen evidence purportedly showing that he did, contrary
to the R&R, request a grievance form from her. (ECF No. 76, PageID.588).
Plaintiff produces a copy of a kite dated August 31, 2022 in which he requests
such a form. Id.
Plaintiff, however, previously failed to produce this evidence, despite
several opportunities to do so. Plaintiff submitted exhibits in his response to the
motion for summary judgment (ECF No. 42) and filed a sur-reply with additional
exhibits. (ECF No. 46). He also filed a motion for reconsideration of the court’s
prior order adopting the instant R&R. Yet, in all these filings, he never included
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the August 21, 2022 kite. Despite these failings, it is well-established that “a
district court has discretion, but is not required, to consider evidence presented
for the first time in a party’s objection to a magistrate judge’s recommendation.”
Thompson v. Richardson, 2013 WL 4780265, at *1 (W.D. Mich. Sept. 5, 2013)
(quoting United States v. Howell, 231 F.3d 615, 621 (9th Cir. 2000)). See also
Muhammad v. Close, 2009 WL 8755520, at *2 (6th Cir. Apr. 20, 2009) (finding
Howell and Freeman v. Bexar, 142 F.3d 848 (5th Cir. 1998), “persuasive” and
concluding that remand was required because the district court failed to
recognize and properly exercise its discretion to consider new evidence not
presented to the magistrate judge); Amadasu v. Ngati, 2012 WL 3930386, at *4
(E.D.N.Y. Sept. 9, 2012) (“A district court has discretion to consider new evidence
raised for the first time in an objection to a magistrate judge’s R&R.”). The court
believes that the Magistrate Judge, as the jurist most familiar with the issues and
facts in this case, should take the first pass at assessing whether the court should
consider Plaintiff’s newly submitted evidence. Accordingly, the court will remand
the R&R back to the Magistrate Judge: (1) to evaluate whether the court should
consider the newly filed evidence; (2) if so, to give the opportunity to Defendants
to rebut or dispute the newly filed evidence.

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IV.

CONCLUSION
For the reasons set forth above, the Court ACCEPTS and ADOPTS the

Magistrate Judge’s Report and Recommendation, in part (ECF No. 59), REMANDS
the issue of whether the court should consider the newly filed evidence that
Plaintiff exhausted his administrative remedies as to Defendant Parsons (ECF No.
39), and DENIES Plaintiff’s motion for a restraining order and sanctions (ECF No.
54).
SO ORDERED.
Date: January 29, 2025

s/F. Kay Behm
F. Kay Behm
United States District Judge

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