Crump #236528 v. Prelesnik et al
ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 119 , granting 76 ; Respondent Sherry is terminated from the case ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
HORACE CRUMP, JR.,
CASE NO. 1:10-CV-353
HON. ROBERT J. JONKER
JOHN PRELESNIK, ET AL.,
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed the Magistrate Judge’s Report and Recommendation (docket #
119) and Petitioner’s Objections to Report and Recommendation (docket # 120). Under the
Federal Rules of Civil Procedure, where, as here, a party has objected to portions of a Report and
Recommendation, “[t]he district judge . . . has a duty to reject the magistrate judge’s
recommendation unless, on de novo reconsideration, he or she finds it justified.” 12 WRIGHT,
MILLER, & MARCUS, FEDERAL PRACTICE AND PROCEDURE § 3070.2, at 381 (2d ed. 1997).
Specifically, the Rules provide that:
The district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.
The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.
FED R. CIV. P. 72(b)(3). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).
The Court has reviewed de novo the claims and evidence presented to Magistrate Judge
Brenneman, the Report and Recommendation itself, and Petitioner’s Objections.
Petitioner objects to the Magistrate Judge’s finding that he failed to exhaust his
administrative remedies in this matter. Petitioner argues that, because he was on modified access
when Respondent Brendan Sherry (hereinafter “Respondent”) allegedly denied him medical
accommodations, it was impossible for him to file a Step III grievance against Respondent, as
Michigan Department of Corrections (“MDOC”) regulations require. (Obj., docket # 120, at 2.)
Even assuming that Petitioner’s modified access status precluded his filing a Step III grievance,
his argument ignores the fact that MDOC regulations establish a separate process by which
prisoners on modified access may pursue grievances against prison staff. MDOC Policy
Directive, 03.02.130 ¶ KK. Under this process, Petitioner could have pursued a grievance against
Respondent, while on modified access, by requesting a grievance form from the prison’s Step I
Grievance Coordinator. Id. Petitioner’s failure to request a grievance form through this alternate
channel, on top of his failure to file a Step III grievance, supports the Magistrate Judge’s
determination that Petitioner failed to exhaust his administrative remedies. (See R & R, docket #
119, at 6-7.)
In his verified Complaint, Petitioner asserts that he requested a grievance form from the
prison’s Step I Grievance Coordinator and that the Grievance Coordinator denied his request.
(Obj., docket # 120, at 3-4.) At a minimum, Petitioner argues, this assertion establishes a factual
dispute as to whether he pursued and exhausted all available administrative remedies. (Id.) That
would be the case, except that the record completely undermines Petitioner’s claim. Documents
from Richard A. Handlon Correctional Facility, created and maintained according to
standardized procedures, unequivocally demonstrate that Petitioner never requested a grievance
form for purposes of filing a grievance against Respondent. (See R & R, docket # 84, at 10;
Kites, docket # 6-2.) When, as here, “the parties tell two different stories, one of which is
blatantly contradicted by the record, so that no reasonable jury could believe it, a court should
not adopt that version of the facts for purposes of ruling on a motion for summary judgment.”
Scott v. Harris, 550 U.S. 372, 380 (2007). Accordingly, the Magistrate Judge was justified in
determining that Petitioner had not presented evidence sufficient to establish a dispute of
The right of access to the courts is firmly established as a cornerstone of Americans’
liberties. See, e.g., Bounds v. Smith, 430 U.S. 817, 821-22 (1977) (“It is now established beyond
doubt that prisoners have a constitutional right of access to the courts.”). It is similarly wellrecognized, however, that the government may establish reasonable procedures for prisoners to
follow in exercising this right. See, e.g., Hartsfield v. Mayer, 76 F.3d 378 (6th Cir. 1996) (“[T]he
state is not required to provide the prisoner with unlimited access to the courts . . . .”). Federal
law requires prisoners to exhaust all available remedies before filing suit in federal court. Prison
Litigation Reform Act, 42 U.S.C. § 1997e. Because it appears clear that Petitioner did not
exhaust all of his administrative remedies as regards Respondent, the Magistrate Judge was
correct in recommending that this Court grant Respondent’s Motion for Summary Judgment.
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (docket # 119) is approved and adopted as the opinion of the Court to the
extent consistent with this Order.
IT IS FURTHER ORDERED that Respondent’s Motion for Summary Judgment
(docket # 76) is GRANTED for failure to exhaust administrative remedies.
Respondent Sherry is TERMINATED from the case.
September 27, 2012
/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
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