Jamerson #138940 v. Caruso et al

Filing 23

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)

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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. 2 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 3

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