Robbins #340564 v. Hallworth et al

Filing 39

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 29 ; 18 ; the case remains open against Defendant Neyo; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL ANTHONY ROBBINS,
Plaintiff,
CASE NO. 1:10-CV-1241
v.
HON. ROBERT J. JONKER
RICH HALLWORTH, et al.,
Defendants.
__________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
The Court has reviewed the Magistrate Judge’s Report and Recommendation (docket # 29),
as well as Objections made by Plaintiff (docket # 31). 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).
Analysis
In his Report and Recommendation, Magistrate Judge Brenneman recommends that
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Plaintiff’s claims against Defendants Julie Fletcher, Todd Lambart, and Douglas Graham be
dismissed because Plaintiff failed to exhaust his administrative remedies prior to filing this lawsuit.
(Report and Recommendation, docket # 29, at 7.) After a de novo review of the record, the Court
adopts the Report and Recommendation.
Under the Prisoner Litigation Reform Act, 42 U.S.C. § 1997e, a prisoner must exhaust his
administrative remedies before filing a federal lawsuit under 42 U.S.C. § 1983. (Id. at 4.) The
Michigan Department of Corrections (“MDOC”) requires prisoners to follow a three-step process
to exhaust grievances. (Id. at 4-5.) First, if the prisoner is unable to resolve the issue directly with
the allegedly responsible staff member, the prisoner must file a Step I grievance with the appropriate
grievance coordinator. (Id.) Second, if the prisoner is dissatisfied with the Step 1 response, he must
file the appropriate form with the Step II coordinator. (Id.) Third, if the prisoner remains
dissatisfied, he must complete a Step III grievance, which is filed with the Grievance and Appeals
Section. (Id.)
As the Magistrate Judge noted, “Richard D. Russell . . . of . . . MDOC’s Grievance Section
. . . submitted an affidavit stating that he searched the records for Step III grievance appeals filed by
plaintiff for the time period relevant to his complaint,” but none of the grievances on file named
Defendants Fletcher, Lambart or Graham. (Id.) Plaintiff objects to the Report and Recommendation
because he believes Mr. Russell’s affidavit stating that Plaintiff never filed a Step III grievance as
to Defendants is a “blatant lie,” and that he in fact exhausted his administrative remedies prior to
filing this lawsuit. (docket # 31, at 1.) In support of his position, Plaintiff notes two specific
grievances against Defendants that he allegedly exhausted: Grievance MTU 101101188012d (the
“12d Grievance”), and Grievance MTU 100800822012e (the “12e Grievance”). (Id. at 2.) Plaintiff’s
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argument is unavailing. With respect to the 12d Grievance, it was indeed exhausted through Step
III, but did not name any of Defendants in the instant action. (docket # 31-1.) Defendant Lambart’s
name appears on the 12d Grievance, but as the Step I Grievance Coordinator, not as the subject of
the complaint. (Id.) As to the 12e Grievance, it names Defendant Graham, but only proceeded
through Step II of the grievance process—not Step III as required. (Id.) Consequently, Plaintiff
failed to properly exhaust his remedies as to the grievances outlined in the Magistrate Judge’s Report
and Recommendation. Jones v. Bock, 549 U.S. 199, 218-19 (2007); Woodford v. Ngo, 548 U.S. 81,
90-93 (2006); Sullivan v. Kasajaru, 316 Fed. Appx. 469, 470 (6th Cir. 2009).
IT THEREFORE IS ORDERED that the Report and Recommendation of the Magistrate
Judge, filed November 14, 2011 (docket # 29) is approved and adopted as the opinion of this Court.
The case remains open against Defendant R. Neyo, as he has not yet been served with the
Complaint.

Dated:

February 13, 2012

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

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