Crump #236528 v. Prelesnik et al

Filing 94

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 84 ; 63 is denied; 61 granted in part and denied in part; 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 ADOPTING REPORT AND RECOMMENDATION
The Court has reviewed the Magistrate Judge’s Report and Recommendation (docket # 84),
as well as Objections made by Plaintiff (docket # 91) and Defendants’ Response (docket # 93).
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).

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Analysis
In his Report and Recommendation, Magistrate Judge Brenneman recommends that
Plaintiff’s Motion for Judgment on the Pleadings (docket # 63) be denied; that Defendants Gary Ball,
Rodney Allen, Lora Hodges, Michael Larabell, Dennis Beecham, Armando Gonzalez, Barbara
Choryan, and Dawn Christiansen Motion for Summary Judgment (docket # 61) be granted, but that
Defendant Chaplain David Leslie’s Motion for Summary Judgment be denied.1 After a de novo
review of the record, the Court adopts the Report and Recommendation.
A.

Plaintiff’s Motion for Judgment on the Pleadings (docket # 63)
The Magistrate Judge recommends denying Plaintiff’s Motion for Judgment on the Pleadings

under Fed. R. Civ. P. 12(c) because “the pleadings are not ‘closed’ for purposes of obtaining a
judgment on the pleadings, because none of the defendants have filed an answer to the amended
complaint.” (docket # 84, at 3.) Plaintiff has not objected to this conclusion. The Court agrees that
the motion is premature, and therefore adopts the Magistrate Judge’s decision to deny the Motion.
B.

Defendants’ Motion for Summary Judgment (docket # 61)
In a previous Order (docket # 60), the Court concluded that Plaintiff properly exhausted his

claim against Defendant Chaplain Leslie that alleged Plaintiff had been improperly denied
scheduling to attend group religious services for two months. (Id. at 2-3.) Indeed, Defendants
concede Plaintiff exhausted his grievance as to Chaplain Leslie. (Id.) Therefore, the Court adopts
the Magistrate Judge’s recommendation that Defendants’ Motion should be denied to the extent it
seeks summary judgment as to the claim against Chaplain Leslie.

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As the Magistrate Judge noted, Defendant Brendan Sherry filed a separate dispositive
motion that is not before the Court.
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As to the remaining Defendants, the issue raised in the present motion is whether Plaintiff
properly exhausted his remaining claims against Defendants while he was under modified access
from February 12, 2010 through May 12, 2010. During this period, Plaintiff was only allowed to
request forms to file a grievance, and a grievance coordinator screened the proposed grievance to
determine whether it was allowable under prison policy. See MDOC Policy Directive 03.02.130
¶ HH. In support of their Motion, Defendants provide the affidavit of Cathleen Heffelbower, the
grievance coordinator in charge of screening grievances Plaintiff proposed filing during this time
period. (docket # 62-1.) Ms. Heffelbower states that she reviewed her records for any kites Plaintiff
filed requesting such forms, but she found none that related to the claims against the named
Defendants in the present action. (Id. at ¶¶ 4-6.) The Magistrate Judge carefully reviewed each kite
on record, and concluded that other than the claim against Chaplain Leslie, Plaintiff’s claims were
not properly exhausted as to the remaining Defendants. (docket # 84, at 10-12.)
Plaintiff objects to the Report and Recommendation, arguing that the Magistrate Judge failed
to properly consider his declaration, and instead improperly limited review to the kites in the record.
(docket # 91, at 1.) Plaintiff’s argument is unpersuasive. Plaintiff states in his affidavit that he
“repeatedly asked Grievance Coordinator . . . Heffelbower–via prisoner kites–for grievance forms,
and repeatedly asked Warden John Prelesnik and Defendant Assistant Deputy Warden (“ADW”)
Gary Ball–via kites and in person–to intervene on my behalf also,” and that he sent more kites than
those contained in his Amended Complaint. (docket # 44.) As Ms. Heffelbower stated in her
affidavit and confirmed after reviewing MDOC policy, however, she recorded any and all such kite
requests as MDOC policy required. (docket # 62-1.) The Magistrate Judge reviewed these kites,
and correctly concluded that they did not pertain to the claims against Defendants (other than
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Chaplain Leslie) currently before the Court. No other competent evidence is before the Court to
refute Ms. Heffelbower’s affidavit and the Magistrate Judge’s conclusions.
Plaintiff also objects to the Report and Recommendation on the basis that the Magistrate
Judge failed to consider that “the Court allowed Plaintiff’s retaliation claims against Defendants to
be served.” (docket # 91.) This argument similarly lacks merit. The record before the Court, having
been developed through Ms. Heffelbower’s affidavit and the kites in MDOC’s records, demonstrates
that Plaintiff failed to exhaust his administrative remedies as to the named Defendants (except
Chaplain Leslie) on the claims before the Court. Summary judgment in favor of Defendants is
therefore appropriate, and Plaintiff’s reliance on what claims were served at the outset of this
litigation does not alter this conclusion.
ACCORDINGLY, IT IS ORDERED that
(1)

The Report and Recommendation of the Magistrate Judge, filed February 3, 2012
(docket # 84) is ADOPTED as the opinion of this Court;

(2)

Plaintiff’s Motion for Judgment on the Pleadings (docket # 63) is DENIED; and

(3)

Defendants’ Motion for Summary Judgment (docket # 61) is GRANTED as to
Defendants Gary Ball, Rodney Allen, Lora Hodges, Michael Larabell, Dennis
Beecham, Armando Gonzalez, Barbara Choryan, and Dawn Christiansen, and
DENIED as to the other Defendants.

This matter remains open as to Defendants Chaplain David Leslie and Brendan Sherry.
IT IS SO ORDERED.
Dated:

March 19, 2012

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