DeWeese #258370 v. Michigan Department of Corrections et al

Filing 24

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 22 only to the extent consistent with this Order; Defendants' Motion for Summary Judgment 15 is GRANTED as to Director Heyns and DENIED to the extent Defendants seek summary judgment as to Defendants RUM Wright, ARUS Battle, and ARUS Bonn. Defendant Heyns is DISMISSED from this action; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

JAMES M. DEWEESE,
Plaintiff,
CASE NO. 1:14-CV-386
v.
HON. ROBERT J. JONKER
MICHIGAN DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
__________________________________/
ORDER
The Court has reviewed Magistrate Judge Kent’s Report and Recommendation in this matter
(docket # 22) and Plaintiff DeWeese’s Objections to the Report and Recommendation (docket # 23).
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.
Plaintiff objects to the Report and Recommendation in only one respect: he asserts that the
Report and Recommendation does not accurately characterize his claim against ARUS Bonn.
(docket # 23.) The Report and Recommendation describes the claim as based on ARUS Bonn’s
denying Plaintiff an indigent loan to purchase hygiene items. Plaintiff points out that his claim
against ARUS Bonn is more accurately characterized as based on ARUS Bonn’s denial of his request
for hygiene items. (docket # 23.) Plaintiff is correct. Plaintiff’s Amended Complaint alleges that
ARUS Bonn “acted with deliberate indifference to Plaintiff’s health and safety and inflicted cruel
and unusual punishment upon Plaintiff by completely depriving him of simple hygenic [sic]
necessities for a period of 161 days.” (docket # 6, ¶ 5.) In its Opinion dated August 22, 2014, the
Court described Plaintiff’s allegations against Defendants Wright, Bonn, and Battle as based on these
defendants’ alleged involvement in the denial of hygiene supplies to Plaintiff. (docket # 8, Page ID
#108.) Plaintiff’s claim against Defendant ARUS Bonn is properly characterized as based on a
denial of a request for hygiene supplies, not a denial of an indigent loan. Defendants have not
sought summary judgment on this claim, which all agree was properly exhausted.1

1

Defendants also describe Plaintiff’s claim against ARUS Bonn as based on the denial of an
indigent loan. (docket # 16.) Defendants cite to Grievance IBC-13-04-1000-3z, which focuses
primarily on ARUS Bonn’s denial of Plaintiff’s request for hygiene products. In this grievance and
related appeal, Plaintiff mentioned that he had to request hygiene products because he could not
afford to purchase hygiene products and was unable to obtain an indigent loan to do so due to a loss
of work assignment. Plaintiff’s references to ineligibility for an indigent loan may be the source of
any mis-characterization of the claim against ARUS Bonn. Defendants acknowledge that the claim
premised on Grievance IBC-13-04-1000-03z was properly exhausted. (docket # 16, Page ID#134).
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ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (docket # 22) is approved and adopted as the opinion of the Court only to the
extent consistent with this Order.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (docket #
15) is GRANTED as to Director Heyns and DENIED to the extent Defendants seek summary
judgment as to Defendants RUM Wright, ARUS Battle, and ARUS Bonn. Defendant Heyns is
DISMISSED from this action.

Dated:

September 24, 2015

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

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