Rayos #311171 v. Smith et al

Filing 119

ORDER MODIFYING and ADOPTING REPORT AND RECOMMENDATION 112 ; defendants' motion for summary judgment 87 is granted in part; dismissing defendants Kelley, Ryske and Scott; dismissing all claims against defendants in their official capacities; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, acr)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARCOS RAYOS, #311171,

Plaintiff,

-vWILLIE O. SMITH, et al.,

Defendant.

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No. 1:15-cv-1153
Honorable Paul L. Maloney

ORDER MODIFYING AND ADOPTING REPORT AND RECOMMENDATION
AND GRANTING IN PART DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
Plaintiff Marcos Rayos, a prisoner under the control of the Michigan Department of
Corrections (MDOC), filed a § 1983 lawsuit against multiple MDOC employees. Rayos
complains that the defendants failed to protect him from two attacks after he informed
various MDOC employees that he would be attacked by other prisoners. The first incident
occurred at the Ionia Correctional Facility in January 2014. The second incident occurred
at the Marquette Branch Prison in December 2014. The claims arising from the second
incident have been severed and dismissed without prejudice. (ECF No. 69.)
Defendants filed a motion for summary judgment, asserting lack of exhaustion of
administrative remedies. (ECF No. 87.) Defendants argue that Rayos did not name any
specific defendants in the relevant grievances.

The magistrate judge issued a report

recommending the motion be granted in part. (ECF No. 112 R&R). The magistrate judge
identified the remaining defendants as Nevins, Thurlby, Kelley, Ryske, (Kerr) Salik, Guiles,
Scott and (Sanders) Green. (Id. PageID.689.) The magistrate judge recommends dismissing

only defendants Sergeant Kelley, Sergeant Ryske, and Correctional Officer Scott. The
magistrate judge also recommends dismissing all of the claims brought against the defendants
in their official capacities.
After being served with a report and recommendation (R&R) issued by a magistrate
judge, a party has fourteen days to file written objections to the proposed findings and
recommendations. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b). A district court judge
reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C. '
636(b)(1); Fed. R. Civ. P. 72(b). Only those objections that are specific are entitled to a de
novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per
curiam) (holding the district court need not provide de novo review where the objections are
frivolous, conclusive or too general because the burden is on the parties to Apinpoint those
portions of the magistrate=s report that the district court must specifically consider@).
Rayos filed an objection. (ECF No. 117.) Rayos does not object to the dismissal of
Kelley, Ryske, or Scott. Neither does Rayos object to the dismissal of the claims against
defendants in their official capacities. Defendants have not filed any objection. Accordingly,
these recommendations will be adopted.
The dispute in Rayos’s objection is the status Defendant Assistant Deputy Erica Huss.
In the report and recommendation, the magistrate judge noted that the claim against
Defendant Huss related to the incident at the facility in Marquette was severed from this
lawsuit. (R&R at 2 PageID.689.) This is an accurate statement; on September 19, 2016, this
Court granted Defendants’ motions to sever and dismissed “Plaintiff’s claim against
defendant Huss related to the December 14, 2014 incident at MBP[.]” (ECF No. 69

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PageID.338.) When Defendants filed their motion to dismiss, Huss was still a defendant for
the incident that occurred at the Ionia facility. Defendants acknowledged that Huss was still
a defendant because the motion for summary judgment was filed behalf of all the remaining
defendants and explicitly identified Huss as one of those defendants. (ECF No. 87.) In fact,
Erica Huss is the first defendant named in the first sentence of the motion. (PageID.403.)
Accordingly, Rayos’s objection is well taken. Rayos has established a factual error in
the report and recommendation. The magistrate judge’s summary of the facts erroneously
omitted Huss as a remaining defendant. By not filing an objection to the recommended
disposition of the motion, Defendants have waived the argument that Huss should be
dismissed for failure to exhaust.
For these reasons, the Report and Recommendation is MODIFIED to reflect that
Erica Huss is still a defendant in this lawsuit. With that modification, the Report and
Recommendation (ECF No. 112) is ADOPTED as the Opinion of this Court.
Defendants’ motion for summary judgment (ECF No. 87) is GRANTED IN PART.
Defendants Kelley, Ryske and Scott are DISMISSED.

All claims against Defendants in

their official capacities are DISMISSED.
IT IS SO ORDERED.
Date: August 25, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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