Washington #207519 v. Davis et al
ORDER OVERRULING OBJECTIONS AND ADOPTING REPORT AND RECOMMENDATION 30 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
Sherman Lance Washington,
-vBob Davis, et al.,
HONORABLE PAUL L. MALONEY
ORDER OVERRULING OBJECTION AND
ADOPTING REPORT AND RECOMMENDATION
This matter is before the Court on Plaintiff’s objection to Magistrate Judge Phillip J.
Green’s Report and Recommendation concerning Defendants’ motion for summary judgment.
(ECF No. 30 at PageID.242.)
On June 6, 2016, Plaintiff Sherman Washington initiated the present action, under 42
U.S.C. § 1983, against Defendants and medical professionals Bob Davis, Michael Karluk, and
Jackie Williams. (ECF No. 1.) On April 25, 2017, Defendants moved for summary judgment
on the basis of exhaustion. (ECF No. 24.) On June 20, 2017, the Magistrate Judge recommended
the Court grant Defendants’ motion because Plaintiff had submitted “no evidence that any of
the grievances were filed, much less pursued through a Step III decision before plaintiff filed
this lawsuit.” (ECF No. 30 at PageID.250.)
Statement of Facts
Plaintiff takes no issue with the facts laid out in the R&R. Since Plaintiff only lodges an
objection against a legal conclusion by the Magistrate Judge—that Plaintiff submitted insufficient
evidence that he filed grievances—the Court otherwise adopts the Magistrate Judge’s summary of
the procedural history and facts. (ECF No. 30 at PageID.248–50.)
With respect to a dispositive motion, a magistrate judge issues a report and
recommendation, rather than an order. 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 “pinpoint those portions of the magistrate’s report that the district
court must specifically consider”). Failure to file an objection results in a waiver of the issue and
the issue cannot be appealed. United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); see
also Thomas v. Arn, 474 U.S. 140, 155 (upholding the Sixth Circuit’s practice). The district
court judge may accept, reject, or modify, in whole or in part, the findings or recommendations
made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Plaintiff’s objection misses the mark. He merely repeats his “allegations that the MTU
Grievance Coordinator did not acknowledge his grievances,” and cites to case law providing that
prisoners under rare circumstances can be said to have exhausted all “available” remedies when
the prison officials did not acknowledge or consider any grievance. See, e.g., Miller v. Norris,
247 F.3d 736, 739 (8th Cir. 2001). But, he does nothing to address why the Magistrate Judge
found his allegations insufficient at the summary judgment stage: “[P]laintiff has provided no
evidence in support of his arguments that he filed the grievances and that the prison’s grievance
coordinator ‘is to blame’ for plaintiff’s failure to exhaust his available administrative remedies.”
(ECF No. 30 at PageID.250 n.2.)
While Plaintiff once again points to the fact that he submitted copies of grievances with
date notations, the Magistrate Judge found he presented no admissible evidence supporting “that
any of these grievances were filed, much less pursued through a Step III decision before plaintiff
filed this lawsuit.” (Id. at PageID.250 (emphasis added).) The complaint was not verified and no
declarations or affidavits were attached to Plaintiff’s response to the motion for summary
judgment. (Id. at n.2.) Statements in Plaintiff’s brief were not sufficient to consider as evidence.
(Id.) Mere allegations were insufficient at the summary-judgment stage. (See id.)
Therefore, Plaintiff’s OBJECTION is OVERRULED. (ECF No. 31.) The Magistrate
Judge’s Report and Recommendation is ADOPTED IN FULL. (ECF No. 30.)
The Court concludes any appeal of this matter would not be taken in good faith because
no jurist would disagree that Plaintiff did not present any evidence of an admissible character
sufficient to defeat Defendants’ affirmative defense at the summary-judgment stage. See McGore
v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997); 28 U.S.C. § 1915(a)(3).
Judgment will enter separately.
IT IS SO ORDERED.
Date: June 14, 2017
/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
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