Swansbrough #489222 v. Martin et al

Filing 30

ORDER ADOPTING REPORT AND RECOMMENDATIONS 26 , 27 re 14 , 20 , 22 ; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

JESSE SWANSBROUGH,
Plaintiff,
v.

Case No. 1:14-CV-1246

MICHAEL MARTIN, et al.,

HON. GORDON J. QUIST

Defendants.
______________________________/

ORDER ADOPTING REPORT AND RECOMMENDATIONS
On November 19, 2015, Magistrate Judge Ellen Carmody issued a Report and
Recommendation (dkt. # 27 (the PI R & R)) recommending that the Court deny Plaintiff’s Motion
for Preliminary Injunction and a Report and Recommendation (dkt. # 26 (the Merits R & R))
recommending that the Court deny both Defendant Tompkins’s1 motion for summary judgment and
Plaintiff’s motion for summary judgment. The magistrate judge recommended that the Court deny
Defendant Tompkins’s motion for summary judgment because he failed to carry his burden of
demonstrating that Plaintiff failed to properly exhaust his administrative remedies. (Id. at Page
ID#104.) The magistrate judge recommended that the Court deny Plaintiff’s motion for summary
judgment because Plaintiff failed to support his motion with evidence. (Id. at Page ID#105.)
Plaintiff has not filed an objection the PI R & R. Having reviewed that Report and
Recommendation, the Court will adopt it.

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It appears that Defendant Thompkins’s correct last name is Tompkins. (Dkt. # 9.) Accordingly, the Court will
order the Clerk to amend the docket report to reflect Defendant Tompkins’s correct name.

Plaintiff has filed a document titled “Affidavit 59(c) in Opposition to Report and
Recommendation,” which the Court construes as an objection to the Merits R & R. Defendant has
not filed an objection to the Merits R & R.
Pursuant to 28 U.S.C. § 636(b)(1), upon receiving objections to a report and
recommendation, the district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” After
conducting a de novo review of the Merits R & R, Plaintiff’s objection, and the pertinent portions
of the record, the Court concludes that the Merits R & R should be adopted.
The magistrate judge recommended denying Plaintiff’s motion for summary judgment
because Plaintiff failed to submit any evidence in support of his motion for summary judgment.
(Dkt. # 26 at Page ID#105.) Plaintiff fails to cite any good reason for rejecting the magistrate
judge’s recommendation. In his objection, Plaintiff states that he “cannot adequately respond to the
Report and Recommendation due to the limited inability [sic] to conduct any form of discovery”
pertaining to the Michigan Department of Corrections criteria and policy for approval of a religious
diet program and the Michigan Department of Corrections criteria and policy for “bettering” chances
for approval of a religious diet upon resubmission. (Dkt. # 28 at Page ID#111.) Plaintiff still has
failed to present evidence to support his motion. If Plaintiff seeks evidence to support a motion for
summary judgment, he may obtain it through discovery conducted in accordance with the Federal
Rules of Civil Procedure.
Therefore,
IT IS HEREBY ORDERED that the Magistrate Judge's Reports and Recommendations
issued November 19, 2015 (dkt. ## 26, 27) are ADOPTED as the Opinions of this Court.
IT IS FURTHER ORDERED that Plaintiff’s Objections (dkt. # 28) are OVERRULED.
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IT IS FURTHER ORDERED that Plaintiff’s Motion for Summary Judgment, Plaintiff’s
Motion for Preliminary Injunction, and Defendant Tompkins’s Motion for Summary Judgment
Based on Plaintiff’s Failure to Exhaust Administrative Remedies (dkt. ## 20, 22 and 14) are
DENIED.
IT IS FURTHER ORDERED that the Clerk shall amend the docket in this case to change
Defendant Thompkins’s last name to Tompkins.

Dated: December 10, 2015

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

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