Franklin #857010 v. MaCauley et al

Filing 36

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 31 ; Def Shultz's Summary Judgment Motion GRANTED 21 ; claims against Defs Schultz and Nowicki are DISMISSED WITHOUT PREJUDICE; signed by Judge Robert J. Jonker (elam)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
LARON FRANKLIN,
Plaintiff,

CASE NO. 1:22-cv-01005

v.

HON. ROBERT J. JONKER

MATT MACAULEY, et al.,
Defendants.
___________________________________/
ORDER

In this prisoner civil rights action filed under 42 U.S.C. § 1983, Plaintiff Franklin claims
that Defendant Corrections Officers Nowicki and Schultz utilized excessive force against him in
violation of his Eighth Amendment rights. (ECF No. 1, PageID.3). Defendant Schultz now moves
for summary judgment on the basis of exhaustion. (ECF No. 21). On October 31, 2024, the
Magistrate Judge issued a Report and Recommendation that the Court grant Defendant Schultz’s
motion. (ECF No. 31). The Magistrate Judge reasoned that there is no evidence that Plaintiff filed
a grievance against Defendant Schultz for excessive force; Plaintiff’s grievance report reflects only
that Plaintiff filed grievances against Defendant Nowicki. (Id., PageID.173).
Additionally, on October 31, 2024, the Magistrate Judge entered an order directing Plaintiff
to show cause as to why Defendant Nowacki should not be dismissed based on the U.S. Marshals
Service’s inability to serve Defendant Nowacki with the information provided by Plaintiff, and
Plaintiff’s failure to provide follow-up information. (ECF No. 32). The Magistrate Judge
expressly advised Plaintiff that if he did not demonstrate good cause by November 14, 2024, the
Court would enter an order dismissing Defendant Nowacki. (Id., PageID.176.)

Page 1 of 2

The Court has carefully reviewed the Magistrate’s Report and Recommendation. No
objections have been filed under 28 U.S.C. § 636(b)(1)(C). Furthermore, Plaintiff has not
complied with the Court’s Order to Show Cause. 1
Accordingly,
IT IS ORDERED that the Report and Recommendation of the Magistrate Judge, (ECF
No. 31), is APPROVED AND ADOPTED as the opinion of the Court. Defendant Schultz’s
Motion for Summary Judgment on the Basis of Exhaustion, (ECF No. 21), is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s claim against Defendant Schultz is
DISMISSED WITHOUT PREJUDICE based on Plaintiff’s failure to exhaust his administrative
remedies.
IT IS FURTHER ORDERED that Plaintiff’s claim against Defendant Nowicki is
DISMISSED WITHOUT PREJUDICE based on Plaintiff’s failure to serve Defendant Nowicki
in the time specified by FED. R. CIV. P. 4(m).
IT IS SO ORDERED.

Dated: November 25, 2024

1

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE

In fact, both the Report and Recommendation and Order to Show Cause were returned to
the Court as undeliverable at the address given by Plaintiff, (ECF No. 33), suggesting that Plaintiff
has abandoned the prosecution of this case altogether, see W.D. Mich. LCivR 41.1 (“Failure of a
plaintiff to keep the court apprised of a current address shall be grounds for dismissal for want of
prosecution.”).