Crump #236528 v. Prelesnik et al

Filing 60

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 53 , motion for summary judgment 40 is denied; Plaintiff's notice of appeal 37 of the Magistrate Judge's order is denied; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HORACE W. CRUMP,
Plaintiff,
CASE NO. 1:10-CV-353
v.
HON. ROBERT J. JONKER
JOHN PRELESNIK, et al.,
Defendants.
__________________________________/
ORDER APPROVING REPORT AND RECOMMENDATION
The Court has reviewed the Magistrate Judge’s Report and Recommendation (docket # 53),
Defendants’ Objections to it (docket # 54), and Plaintiff’s Response (docket # 55). The Court has
also reviewed Plaintiff’s Notice of Appeal to District Judge (docket # 37).
Report and Recommendation
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); see also 28 U.S.C. § 636(b)(1)(C). 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 Report and Recommendation recommends that Defendants’ motion for summary
judgment (docket # 40) be denied, because genuine issues of material fact regarding Plaintiff’s
exhaustion of administrative remedies exist. This recommendation is based on evidence in the
record, submitted by Plaintiff, that Plaintiff requested grievance forms in a variety of circumstances,
as required by MDOC grievance procedures. (Docket # 6-2, p. 27-35) Defendants object that many
of the requests are irrelevant to this lawsuit. Defendants do, however, concede that Plaintiff has
exhausted his administrative remedies on at least one issue. (Docket # 54 at 3) After a de novo
review of the record, the Court orders that Defendants’ motion for summary judgment be denied.
Plaintiff brought suit under 42 U.S.C. § 1983 against numerous defendants, nine of whom
remain in the case (Defendants Ball, Allen, Larabell, Hodges, Leslie, Beechum, Gonzalez, Choryan
and Christiansen). Plaintiff made numerous allegations, many of which were dismissed by the Court
in an earlier order. (Docket ## 12-13) Defendants sought summary judgment on the remaining
claims based on Plaintiff’s failure to exhaust administrative remedies. (Docket # 40) The motion
lists numerous grievances filed by Plaintiff, but it does not address the fact that Plaintiff was on
modified access from February 12 through May 12, 2010, and was only allowed to request a
grievance form under MDOC Policy Directive 03.02.130 ¶ KK. See Walker v. Michigan Department
of Corrections, 128 Fed. Appx. 441, 446-47 (6th Cir. 2005).
The Court agrees with the Magistrate Judge’s recommendation that Defendants’ motion for
summary judgment based on Plaintiff’s failure to exhaust administrative remedies should be denied.
Defendants concede in their objection that Plaintiff did exhaust at least one grievance against

Defendant Leslie. Despite Plaintiff’s declaration that he submitted additional grievance requests,
Defendants did not include any evidence regarding Plaintiff’s request for grievance forms, even
though records of such requests are required to be kept under MDOC’s own policies. Genuine issues
of material fact about Plaintiff’s exhaustion exist, and thus Defendants’ motion must be denied.
Plaintiff’s Notice of Appeal to District Judge
Plaintiff’s notice of appeal, filed on January 12, 2011, addresses the Magistrate Judge’s order
(docket # 30) granting Defendants a second extension to respond to the complaint. In considering
an appeal of a Magistrate Judge’s ruling on a nondispositive pre-trial motion, the Court applies a
“clearly erroneous or contrary to law” standard of review. United States v. Curtis, 237 F.3d 598, 603
(6th Cir. 2001) (citing United States v. Raddatz, 447 U.S. 667, 673 (1980)); accord Brown v.
Wesley’s Quaker Maid, Inc., 771 F.2d 952, 954 (6th Cir. 1985) (citing 28 U.S.C. § 636(b)(1)(a)); see
also FED . R. CIV . P. 72(a) (district judge must consider timely objections to nondispositive pretrial
orders of magistrate judge and modify or set aside any part of order that is clearly erroneous or is
contrary to law). A finding is “clearly erroneous” when “‘the reviewing court on the entire evidence
is left with the definite and firm conviction that a mistake has been committed.’” Anderson v. City
of Bessemer City, North Carolina, 470 U.S. 564, 573 (1985) (quoting United States v. United States
Gypsum Co., 333 U.S. 364, 395 (1948)).
The Magistrate Judge’s order in this case was not clearly erroneous or contrary to law. A
court may extend time to respond for good cause shown. See Fed. R. Civ. P. 6(b). Defendants’
motion for a second extension stated valid justifications for the request, including Plaintiff’s
numerous claims against numerous defendants and the recent loss of personnel in the Attorney

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General’s office due to an early retirement plan. The Magistrate Judge did not err when he granted
an extension.
IT THEREFORE IS ORDERED that the Report and Recommendation of the Magistrate
Judge, filed June 6, 2011, is approved and adopted as the opinion of this Court.
IT IS FURTHER ORDERED that:
1.

The motion for summary judgment filed by Defendants Ball, Allen, Hodges,
Larabell, Leslie, Beecham, Gonzalez, Choryan and Christiansen (docket # 40) is
DENIED.

2.

Dated:

Plaintiff’s notice of appeal (docket # 37) of the Magistrate Judge’s order is DENIED.

August 19, 2011

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE

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