Sango #252200 v. Miniard et al

Filing 55

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 53 ; Defendant Riggs's Motion for Summary Judgment 33 is GRANTED; Plaintiff's first and second Motions for Sanctions 40 44 are DENIED; Plaintiff's Motion for Summary Judgment 46 is DISMISSED AS MOOT; the Court discerns no good-faith basis for appeal; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT D. SANGO,
Plaintiff,
CASE NO. 1:14-CV-344
v.
HON. ROBERT J. JONKER
UNKNOWN MINIARD, et al.,
Defendants.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Kent’s Report and Recommendation in this matter
(docket # 53) and Plaintiff’s Objections to the Report and Recommendation (docket # 54). 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 to whom the case is assigned shall make a de novo
determination upon the record, or after additional evidence, of any
portion of the magistrate judge's disposition to which specific written
objection has been made in accordance with this rule. The district
judge may accept, reject, or modify the recommended decision,
receive further evidence, or recommit the matter to the magistrate
judge with instructions.
FED R. CIV. P. 72(b). 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 Court has reviewed de novo the claims and evidence presented to the Magistrate Judge; the
Report and Recommendation itself; and Plaintiff's objections. After its review, the Court finds that
Magistrate Judge Kent’s Report and Recommendation, which recommends granting summary
judgment to Defendant Riggs based on Plaintiff’s failure to exhaust, is factually sound and legally
correct.
The Magistrate Judge carefully and thoroughly considered the evidentiary record, the
parties’ arguments, and the governing law.

Nothing in Plaintiff’s Objections changes the

fundamental analysis. The MDOC Grievance Report reflects that Plaintiff filed two Step III
grievances while incarcerated at ECF, and that neither grievance had to do with the retaliation claim
against Defendant Riggs on which this case is based. Plaintiff says that he attempted to file four
additional Step III grievances and that one or more of those grievances involved the retaliation
claim against Defendant Riggs asserted in this case. Plaintiff speculates that the MDOC concealed
the existence of the grievances, but there is no basis in the record for such a conclusion. Even
Plaintiff concedes that he did not mail the grievances to the Director’s Office as required by the
Policy Directive, addressing the grievances instead to “CFA Classification Dir. Laura S. Heinritz.”
The record reflects that Plaintiff failed to exhaust his claim of retaliation against Defendant Riggs,
for precisely the reasons the Report and Recommendation details.
The Report and Recommendation does not address Plaintiff’s Motion for Summary
Judgment (docket # 46). However, the determination that Plaintiff failed to exhaust administrative
remedies moots the motion, because the PLRA precludes a prisoner from bringing an action
regarding prison conditions under 42 U.S.C. § 1983 without first exhausting administrative
remedies. See Porter v. Nussle, 534 U.S. 516 (2002); Booth v. Churner, 532 U.S. 731 (2001).
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ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (docket # 53) is approved and adopted as the opinion of the Court.
IT IS FURTHER ORDERED Defendant Riggs’s Motion for Summary Judgment (docket
# 33) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s first and second Motions for Sanctions
(docket ## 40, 44) are DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment (docket #
46) is DISMISSED AS MOOT.
IT IS FURTHER ORDERED that for the same reasons that the Court dismisses the action,
the Court discerns no good-faith basis for an appeal within the meaning of 28 U.S.C. § 1915(a)(3).
See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997).
This case is CLOSED.

Dated:

March 16, 2016

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

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