St. Ann v. McLean et al

Filing 62

SECOND AMENDED ORDER Adopting Magistrate Judge Patti's 58 Report and Recommendation. Signed by District Judge Judith E. Levy. (SBur)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
David St. Ann,
Plaintiff,
v.

Case No. 15-cv-11770
Judith E. Levy
United States District Judge

Todd McLean, et al.,
Mag. Judge Anthony P. Patti
Defendants.
________________________________/
SECOND AMENDED ORDER ADOPTING MAGISTRATE JUDGE
PATTI’S REPORT AND RECOMMENDATION [58]
On January 3, 2018, Magistrate Judge Anthony P. Patti issued a
Report and Recommendation (Dkt. 58) recommending that the Court
grant in part and deny in part defendants’ motion for summary
judgment.
Court

(Dkt. 48.)

dismiss

with

Magistrate Judge Patti recommends that the
prejudice

plaintiff’s

claims

regarding

a

constitutional right to a particular security classification, dismiss
without prejudice plaintiff’s claims against defendant Buczek for failure
to exhaust his administrative remedies, and not dismiss plaintiff’s

claims for retaliation and intentional infliction of emotional distress.
(Dkt. 58 at 17-18.)
The parties were required to file specific written objections within
14 days of service, or by January 17, 2018. Fed. R. Civ. P. 72(b)(2); E.D.
Mich. L.R. 72.1(d). On January 25, 2018, plaintiff filed an objection to
the dismissal without prejudice of his claims against defendant Buczek.
(Dkt. 61.)

Although dated January 16, 2018, the objection was not

mailed until January 22, 2018 (Dkt. 61 at 21), and is therefore
untimely. The Court also notes that plaintiff’s claims against Buczek
will be denied without prejudice, and so plaintiff may assert those
claims in another lawsuit if he can show he has exhausted his
administrative remedies.
The

Court

has

thoroughly

reviewed

Recommendation,

and

concurs

the

in

the

reasoning

Report
and

and
result.

Accordingly, it is hereby ordered that:
The Court’s prior adoption of the Report and Recommendation
(Dkt. 60) is WITHDRAWN;
The Report and Recommendation is ADOPTED;

2

Defendants’ motion for summary judgment (Dkt. 48) is GRANTED
IN PART AND DENIED IN PART;
Plaintiff’s claims asserting a constitutional right to a particular
security classification are DISMISSED WITH PREJUDICE;
Plaintiff’s claims against defendant Buczek are DISMISSED
WITHOUT PREJUDICE; and
Plaintiff’s claims for retaliation and intentional infliction of
emotional distress are NOT DISMISSED.
IT IS SO ORDERED.
Dated: January 29, 2018
Ann Arbor, Michigan

s/Judith E. Levy
JUDITH E. LEVY
United States District Judge

CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on January 29, 2018.
s/Shawna Burns
SHAWNA BURNS
Case Manager

3