Treadwell #124392 v. Almy et al

Filing 57

ORDER ADOPTING REPORT AND RECOMMENDATION 48 ; Defendants Henry, Hardy and Almy's motion for summary judgment 19 is construed as Motion to dismiss and to that extent denied and Defendant Singleton's motion for summary judgment 39 is construed as a motion to dismiss and to that extent denied; the remainder of Defendants' Motions for summary judgment [19,39] are dismissed without prejudice; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, aeb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT TREADWELL #124392,
Plaintiff,

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)
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-v)
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RON ALMY,
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MICHAEL SINGLETON,
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CHAD HARDY, and
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TONY HENRY,
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Defendants.
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____________________________________)

No. 1:10-cv-00560
HONORABLE PAUL L. MALONEY

ORDER ADOPTING REPORT AND RECOMMENDATION OVER OBJECTIONS
Before this court is a Report and Recommendation issued by Magistrate Judge Scoville.
(ECF No. 48.)
I.

BACKGROUND
This is a civil-rights suit brought pro se by Robert Treadwell, a state prisoner, under 42

U.S.C. § 1983. Mr. Treadwell alleges that in January 2009, he was removed from his food-service
job at the Muskegon Correctional Facility as retaliation for a letter he wrote to the Facility’s warden
informing her that the food-service staff had been serving prisoners allegedly “tainted” chicken
patties. Mr. Treadwell alleges, in the only claim still at issue, that this action violated his First
Amendment rights.
Defendants have filed Motions for Summary Judgment (ECF No. 19, 39), while refusing to
respond to Mr. Treadwell’s discovery requests on grounds of qualified immunity. On September
30, 2011, the magistrate judge issued a Report and Recommendation (“R&R”) that Defendants’
motions be construed as Rule 12(b)(6) Motions to Dismiss, that these motions be denied, and that
the remainder of Defendants’ Motions for Summary Judgment be dismissed without prejudice.

Defendants timely filed objections to the R&R on October 11, 2011. (ECF No. 50.)
II.

STANDARD OF REVIEW
Parties have 14 days to file written objections to the proposed findings and recommendations

in a magistrate judge’s report and recommendation (“R&R”). 28 U.S.C. § 636(b)(1); Fed. R. Civ.
P. 72(b). A district court judge reviews de novo the portions of the R&R to which objections have
been filed, and may accept, reject, or modify, in whole or in part, the magistrate judge’s findings or
recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Only specific objections are
entitled to de novo review under the statute, see Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986)
(per curiam), and the statute does not “positively require[] some lesser review by the district court
when no objections are filed.” Thomas v. Arn, 474 U.S. 140, 150 (1985). Failure to object to an
issue waives that issue, along with the party’s right to appeal that issue. United States v. Sullivan,
431 F.3d 976, 984 (6th Cir. 2005); see Arn, 474 U.S. at 155 (upholding the Sixth Circuit’s practice).
III.

DISCUSSION
Defendants object to the R&R on the ground that it failed to address the issue of whether

Plaintiff exhausted his administrative remedies as to Defendant Hardy prior to filing this suit.
Defendants argue that the exhaustion issue is a prerequisite to suit and thus must be addressed
initially, before the suit is allowed to proceed. In any case, Defendants argue, Mr. Treadwell’s
discovery requests do not concern exhaustion and so the issue is ripe for determination.
This objection is OVERRULED. The magistrate judge properly found that Defendants’
Motions for Summary Judgment were premature and declined to rule on them before Mr. Treadwell
had conducted his discovery. See Siggers v. Campbell, 652 F.3d 681, 697–98 (6th Cir. 2011)
(holding that trial court abused its discretion by refusing to delay consideration of summary

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judgment motions to provide plaintiff prisoner time to obtain discovery); Alspaugh v. McConnell,
643 F.3d 162, 168 (6th Cir. 2011) (“[I]t is not proper to grant summary judgment without giving
[plaintiff] an opportunity to engage in discovery merely because the state defendants asserted
qualified immunity as a defense.”); CenTra, Inc. v. Estrin, 538 F.3d 402, 420 (6th Cir. 2008)
(“Typically, when the parties have no opportunity for discovery, denying [a] Rule 56(f) motion and
ruling on a summary judgment motion is likely to be an abuse of discretion.”). The magistrate did
not ignore Defendants’ exhaustion argument; instead, he determined that this claim, as part of
Defendants’ Motions for Summary Judgment, was premature. The issue of exhaustion is an
affirmative defense, see Jones v. Bock, 549 U.S. 199, 216 (2007), and contrary to Defendants’
suggestion, it need not be addressed prior to discovery.
For the reasons discussed above, IT IS HEREBY ORDERED that:
1.

The report and recommendation (ECF No. 48) is ADOPTED, over objections, as the opinion
of this court;

2.

Defendants Henry, Hardy and Almy’s Motion for Summary Judgment (ECF No. 19) is
construed as a Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) and to that extent DENIED;

3.

Defendant Singleton’s Motion for Summary Judgment (ECF No. 39) is construed as a
Motion to Dismiss under Fed. R. Civ. P. 12(b)(6) and to that extent DENIED; and

4.

The remainder of Defendants’ Motions for Summary Judgment (ECF No. 19, 39) are
DISMISSED without prejudice.

Date:

November 9, 2011

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge

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