Ford #374376 v. Kennerly et al

Filing 113

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 96 ; Defendants' motion for summary judgment 57 and Defendant's motion for summary judgment 82 are GRANTED; Judgment to issue; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ELIJAH M. FORD,
Plaintiff,
Case No. 1:16-cv-243
v.
HON. JANET T. NEFF
MICHAEL C. KENNERLY, et al.,
Defendants.

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OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983. Defendants filed
motions for summary judgment, arguing that Plaintiff failed to exhaust his administrative remedies
(ECF Nos. 57 and 82). The matter was referred to the Magistrate Judge, who issued a Report and
Recommendation (R&R), recommending that Defendants’ motions both be granted (ECF No. 96).
The matter is presently before the Court on Plaintiff’s objections to the Report and
Recommendation. In accordance with 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b)(3), the
Court has performed de novo consideration of those portions of the Report and Recommendation
to which objections have been made. The Court denies the objections and issues this Opinion and
Order. 1

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The Magistrate Judge noted in the March 21, 2017 Report and Recommendation that Plaintiff’s
deliberate indifference claims were then unresolved. On April 12, 2017, however, this Court
dismissed all deliberate indifference claims (ECF No. 97). Therefore, this Court’s Opinion and
Order concerns only the remaining equal protection claim against Defendant Wilson and the
retaliation claims against Defendants Wilson, Murry, Moul, Vankamman, Bowerman (Bourman),
Wood (Woods), Shroad, Harris, Zwolensky, Day and Nevins.

Plaintiff argues that the Magistrate Judge erred in determining that he did not exhaust his
administrative remedies (Pl. Obj., ECF No. 98 at PageID.1315). Plaintiff opines that he “properly
utilized the prisons grievance system” (id.). However, Plaintiff fails to identify any error in the
Magistrate Judge’s conclusion that he has not exhausted his administrative remedies regarding the
present claims.

Accordingly, this Court adopts the Magistrate Judge’s Report and

Recommendation as the Opinion of this Court and dismisses these claims without prejudice.
Because this Opinion and Order resolves the remaining claims in this case, a Judgment will also
be entered. See FED. R. CIV. P. 58. Because this action was filed in forma pauperis, this Court
also certifies, pursuant to 28 U.S.C. § 1915(a)(3), that an appeal of the Judgment would not be
taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601, 610 (6th Cir. 1997), overruled
on other grounds by Jones v. Bock, 549 U.S. 199, 206, 211-12 (2007). Therefore:
IT IS HEREBY ORDERED that the Objections (ECF No. 98) are DENIED and the
Report and Recommendation of the Magistrate Judge (ECF No. 96) is APPROVED and
ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (ECF No.
57) is GRANTED.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (ECF No.
82) is GRANTED.
IT IS FURTHER ORDERED that this Court certifies pursuant to 28 U.S.C. § 1915(a)(3)
that an appeal of the Judgment would not be taken in good faith.
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

Dated: November 14, 2017

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