Syzak #215189 v. Lindhost et al

Filing 39

OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 35 ; Defendants' motion for summary judgment 15 is GRANTED; Defendant's motion for summary judgment 19 is GRANTED; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SCOTT SYZAK,
Plaintiff,
Case No. 1:16-cv-727
v.
HON. JANET T. NEFF
ANDREA LINDHOUT, et al.,
Defendants.

____________________________/
OPINION AND ORDER
This is a prisoner civil rights action filed pursuant to 42 U.S.C. § 1983 involving Plaintiff’s
Eighth Amendment claim. Defendants Aiken, Alfrey, Berg, Hammond, and Ritz moved for
summary judgment on multiple grounds, including that Plaintiff failed to exhaust his
administrative remedies (ECF No. 15). Defendant Lindhout also filed a Motion for Summary
Judgment, arguing that Plaintiff failed to exhaust his administrative remedies (ECF No. 19). 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. 35). The matter is presently
before the Court on Plaintiff’s objection 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 objection has been made. The
Court denies the objection and issues this Opinion and Order.
Inasmuch as Plaintiff concedes that he did not file Step II or Step III grievance forms (Pl.
Obj., ECF No. 36 at PageID.411), Plaintiff fails to demonstrate any error in the Magistrate Judge’s

determination that Plaintiff has not exhausted his administrative remedies (R&R, ECF No. 35 at
PageID.407). Plaintiff’s objection merely reiterates the argument he made to the Magistrate Judge,
to wit: that his subjective belief that “there were no remedies available to him” “should be
considered a special circumstance that would excuse exhaustion” (Pl. Obj., ECF No. 36 at
PageID.409).

For the reasons stated in the Report and Recommendation (ECF No. 35 at

PageID.406-407), Plaintiff’s argument lacks merit. His subjective assessment of the availability
of remedies is simply irrelevant to the exhaustion analysis. Therefore, this Court adopts the
Magistrate Judge’s Report and Recommendation as the Opinion of this Court.
Accordingly:
IT IS HEREBY ORDERED that the Objection (ECF No. 36) is DENIED and the Report
and Recommendation of the Magistrate Judge (ECF No. 35) is APPROVED and ADOPTED as
the Opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (ECF No.
15) is GRANTED.
IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment (ECF No.
19) is GRANTED.

/s/ Janet T. Neff
JANET T. NEFF
United States District Judge

Dated: September 19, 2017

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