Jamerson #138940 v. Caruso et al
ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 20 as the opinion of the court, with the exception that page one of the R&R is modified to reflect that Defendants' motion for summary judgment is granted based on the merits of plaintiff's claims and on sovereign immunity and qualified immunity; and granting Defendants' motion for summary judgment 13 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)
UNITED STATES DISTRICT COURT F O R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION
D A V ID L. JAMERSON #138940, P l a in tif f , F ile No. 2:08-CV-284 v. HON. ROBERT HOLMES BELL P A T R IC IA L. CARUSO, et al., D e f e n d a n ts . / O R D E R APPROVING AND ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION AS MODIFIED O n August 20, 2010, United States Magistrate Judge Timothy P. Greeley issued a rep o rt and recommendation ("R&R") recommending that Defendants' motion for summary ju d g m e n t (Dkt. No. 13) be granted. Defendants filed objections to the R&R on August 27, 2010. This Court is required to make a de novo determination of those portions of the R&R to which specific objection has been made, and may accept, reject, or modify any or all of th e Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P . 72(b). Defendants do not object to the recommendation that their motion for summary ju d g m e n t be granted. They filed objections solely for the purpose of correcting a
m is s ta te m e n t in the R&R regarding the basis for the recommendation. Although the
M ag istrate Judge recommended that Defendants' motion be granted "based on Plaintiff's f a ilu re to exhaust his available administrative remedies," (R&R 1), this recommendation c o n f lic ts with the Magistrate Judge's finding that Plaintiff did in fact satisfy the exhaustion re q u ire m e n t with respect to his claims against Defendants Phillipson and Stasewich. (R&R 9 .) Defendants request the Court to clarify that it is entering summary judgment on the m e r its of Plaintiff's claims and based on sovereign immunity and qualified immunity as rec o m m en d ed in the body of the R&R. (R&R 5-7, 10-13.) Defendants' objections are well-taken. As evidenced by the balance of the R&R, the r e c o m m e n d a tio n on page one that summary judgment be granted based on failure to exhaust w a s inadvertent and mistaken. The first page of the R&R should reflect the Magistrate Ju dge's recommendation that summary judgment be granted based on the merits of Plaintiff's c la im s and on sovereign immunity and qualified immunity. (R&R 10-13.) Accordingly, I T IS HEREBY ORDERED that Defendants' objections to the R&R (Dkt. No. 2 :0 8 -C V -2 8 4 ) are SUSTAINED. I T IS FURTHER ORDERED the August 20, 2010, R&R of the Magistrate Judge ( D k t. No. 20) is APPROVED and ADOPTED as the opinion of the Court, with the e x c e p tio n that page one of the R&R is MODIFIED to reflect that Defendants' motion for s u m m a ry judgment is granted based on the merits of Plaintiff's claims and on sovereign im m u n ity and qualified immunity.
I T IS FURTHER ORDERED that Defendants' motion for summary judgment (Dkt. N o . 13) is GRANTED. IT IS CERTIFIED pursuant to 28 U.S.C. § 1915(a)(3) and Fed. R. App. P. 24(a)(3) th a t an appeal of this action would not be in good faith.
Dated: September 15, 2010
/s/ Robert Holmes Bell ROBERT HOLMES BELL UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?