Neal #330118 v. Ellis et al

Filing 22

ORDER ADOPTING IN PART AND REJECTING AND REMANDING IN PART REPORT AND RECOMMENDATION 20 re 17 : Defendant's Motion for Summary Judgment 17 is GRANTED IN PART and the excessive force claim is REMANDED to the Magistrate Judge; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
__________________________

TERRY WILLIAM NEAL,
Plaintiff,
v.

Case No. 1:10-CV-1075

UNKNOWN ELLIS, et al.,

HON. GORDON J. QUIST

Defendants.
_________________________/

ORDER ADOPTING IN PART AND REJECTING
AND REMANDING IN PART THE REPORT AND RECOMMENDATION
Plaintiff, Terry William Neal, has filed an objection to the Report and Recommendation (“R
& R”) dated January 17, 2012, in which the Magistrate Judge recommended that Neal’s complaint
be dismissed. Upon de novo review of the R & R, Neal’s objection, and the pertinent portions of
the record, the Court will adopt the R & R in part, and reject and remand the remaining portions of
the R & R.
The R & R found that Neal did not properly exhaust a grievance with respect to Neal’s
excessive force claim against Defendant Ellis. Neal objected to this finding and argued that the
claim was properly exhausted. Failure to exhaust administrative remedies is an affirmative defense
that must be raised by a defendant. Jones v. Bock, 549 U.S. 199, 216, 127 S. Ct. 910, 921 (2007).
A district court may not sua sponte dismiss a prisoner’s action on the basis that he failed to exhaust
his or her administrative remedies. Kramer v. Wilkinson, 226 F. App’x 461, 462 (6th Cir. 2007);
see also Hutcherson v. Lauderdale Cnty., 326 F.3d 747, 757 (6th Cir. 2003) (“Courts generally lack
the ability to raise an affirmative defense sua sponte.”). Defendant Ellis did not raise lack of
exhaustion as an affirmative defense to challenge Neal’s excessive force claim. (Def.’s Br. at 8.)
The Magistrate Judge should not have raised the defense sua sponte. Therefore, the R & R will be

rejected insofar as it dismissed Neal’s excessive force claim, and the issue will be remanded to the
Magistrate Judge for further consideration of Neal’s claim regarding excessive force.
Neal has not objected to any other portions of the R & R. Therefore, the R & R will be
adopted in all other aspects and the remaining claims against Defendant Ellis will be dismissed.
Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge’s Report and Recommendation
issued January 17, 2012 (Dkt. #20) is rejected insofar as its found Neal’s excessive force claim not
to be administratively exhausted, but adopted in all other regards.
IT IS FURTHER ORDERED that Neal’s Objection (Dkt. #21) is dismissed as moot.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (Dkt. #17)
is granted in part as to all claims besides Neal’s excessive force claim.
IT IS FURTHER ORDERED that this matter is remanded to the Magistrate Judge for
further proceedings consistent with this Order.

Dated: February 7, 2012

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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