Hunter #242663 v. Joboulian et al
Filing
106
OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 90 ; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
Case 1:17-cv-00832-JTN-SJB ECF No. 106 filed 09/01/20 PageID.598 Page 1 of 4
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JERMAINE D. HUNTER,
Plaintiff,
Case No. 1:17-cv-832
v.
HON. JANET T. NEFF
JOHN JOBOULIAN, et al.,
Defendants.
____________________________/
OPINION AND ORDER
Plaintiff filed this prisoner civil rights action pursuant to 42 U.S.C. § 1983, alleging claims
of the denial of appropriate dental care in violation of the Eighth Amendment, retaliation in
violation of the First Amendment, and various state law claims against several defendants. The
Court previously dismissed several of the claims in accordance with the Magistrate Judge’s earlier
Report and Recommendation (R&R) (ECF No. 38 at PageID.293-294). The Magistrate Judge
subsequently conducted an evidentiary hearing to resolve factual disputes regarding whether
Plaintiff properly exhausted his administrative remedies as to two of his remaining claims. The
Magistrate Judge issued a Report and Recommendation, recommending the Court dismiss both
claims without prejudice for failure to exhaust administrative remedies. 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.
Case 1:17-cv-00832-JTN-SJB ECF No. 106 filed 09/01/20 PageID.599 Page 2 of 4
An objection to a magistrate judge’s report and recommendation must “specifically identify
the portions of the proposed findings, recommendations, or report to which objections are made
and the basis for such objections.” W.D. Mich. LCivR 72.3(b). The Court reviews de novo “those
portions of the report or specified proposed findings or recommendations to which objection is
made ….” Id. As a threshold matter, arguments not raised before the Magistrate Judge are deemed
waived and are not properly raised on objection to a report and recommendation. See United States
v. Waters, 158 F.3d 933, 936 (6th Cir. 1998); Bartlett v. Borgess Hosp., No. 1:17-cv-1138, 2018
WL 4521936 at *1 (W.D. Mich. Sept. 21, 2018).
Plaintiff objects that the Magistrate Judge erred in finding that:
I.
Defendants met their burden to demonstrate that the
grievance process was available to Plaintiff who simply
failed to take advantage of such (Pl. Obj., ECF No. 96 at
PageID.539-540);
II.
Plaintiff failed to present or identify evidence calling into
doubt Miller’s testimony (id. at PageID.544);
III.
Plaintiff failed to present or identify evidence … supporting
the argument the Plaintiff did properly submit his grievance
(id. at PageID.545); and
IV.
it is inherently illogical that other of Plaintiff’s grievances
were received and processed save for this one (id. at
PageID.546).
All four of Plaintiff’s objections are denied. Plaintiff’s objections largely center around
the credibility of grievance coordinator Kurt Miller in testifying that he did not receive the
grievance presently in dispute.
However, the Magistrate Judge properly accepted Miller’s
testimony and found him to be a credible witness, citing in particular Miller’s testimony that
grievance forms, as well as mailboxes for submitting grievances, are available in every housing
unit; the mailboxes are locked until the mail therein is retrieved and taken to the mailroom; every
grievance concerning matters at the Michigan Reformatory is “logged into the database” and
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assigned “a unique identifying number”; and Miller had never before seen the grievance in
question and a search of his database revealed that no such grievance had been submitted (R&R,
ECF No. 90 at PageID.525).
Contrary to Plaintiff’s arguments, the Magistrate Judge properly acknowledged that
Defendants had the burden of proof, and did not place the burden on Plaintiff. The Magistrate
Judge simply noted that Plaintiff was unable to demonstrate that Miller was unworthy of belief or
failed to testify truthfully (id.); that Plaintiff failed to present evidence that undermined
Defendants’ testimony and evidence; and that the evidence did not support Plaintiff’s theory (id.
at PageID.525-526). The Magistrate Judge also found Defendants’ other two witnesses credible,
although their testimony was marginally relevant (id. at PageID.526). Additionally, the Magistrate
Judge properly deemed the warden’s 2013 to 2017 forum minutes irrelevant given the narrow issue
of whether Plaintiff filed a July 6, 2016 grievance (ECF No. 82 at PageID.436). Plaintiff’s fails to
show any error in the Magistrate Judge’s ruling and preclusion of this evidence.
On the whole, Plaintiff’s objections essentially reiterate his arguments made to the
Magistrate Judge, based on his affidavit, that he properly submitted his grievance and kites
inquiring about the processing and status of the grievance and thus had exhausted his available
administrative remedies. Plaintiff has shown no error in the Magistrate Judge’s analysis or
conclusions following the evidentiary hearing. Therefore, Plaintiff’s arguments fail, and the
objections are denied.
Accordingly, this Court adopts the Magistrate Judge’s Report and Recommendation as the
Opinion of this Court.
Therefore:
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IT IS HEREBY ORDERED that the Objections (ECF No. 96) are DENIED, and the
Report and Recommendation of the Magistrate Judge (ECF No. 90) is APPROVED and
ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that the following two claims are DISMISSED without
prejudice for failure to exhaust to administrative remedies: (1) Plaintiff’s Eighth Amendment
claim that on February 20, 2014, Defendant Graham placed in Plaintiff’s medical file a
“fabricated” report “downplaying” the seriousness of Plaintiff’s need for dental care, and (2)
Plaintiff’s Eighth Amendment claim that on June 24, 2014, Defendant Joboulian placed in
Plaintiff’s medical file a “fabricated” report “downplaying” the seriousness of Plaintiff’s need for
dental care.
/s/ Janet T. Neff
JANET T. NEFF
United States District Judge
Dated: September 1, 2020
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