Kelly #225090 v. Shubert et al

Filing 71

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 66 , and granting in part and denying in part Defendant Schubert's motion for summary judgment 51 ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
OPELTON KELLY, #225090
Plaintiff,
Case No. 2:10-cv-51
v.
HON. ROBERT HOLMES BELL
R SHUBERT, et al.,
Defendants.
/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
On February 16, 2012, Magistrate Judge Timothy P. Greeley issued a Report and
Recommendation (“R&R”) recommending that Defendant Schubert’s motion for summary
judgment (Dkt. No. 51) be granted as to Plaintiff’s claim that he was denied use of a
microwave on the basis of his race, and denied as to Plaintiff’s retaliation claim. (Dkt. No.
66.) This matter is before the Court on objections filed by Plaintiff (Dkt. No. 68) and by
Defendant Schubert (Dkt. No. 67).
This Court makes a de novo determination of those portions of an R&R to which
specific objections are made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). “[A] general
objection to a magistrate’s report, which fails to specify the issues of contention, does not
satisfy the requirement that an objection be filed. The objections must be clear enough to
enable the district court to discern those issues that are dispositive and contentious.” Miller
v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). The Court may accept, reject, or modify any or

all of the Magistrate Judge’s findings or recommendations. Id.
Defendant Schubert objects to the Magistrate Judge’s determination that there is a
genuine issue of material fact regarding Plaintiff’s retaliation claim. Specifically, Defendant
Schubert argues that the disciplinary action taken against Plaintiff was in response to
violations of prison policy and would have occurred even if Plaintiff had not
engaged in protected conduct. (Dkt. No. 67 at 3.) However, Plaintiff has presented
evidence — including multiple grievance forms, a witness affidavit, and reference to prison
video — in support of his position that the disciplinary action was retaliatory. Given the
Court’s obligation to draw all justifiable inferences in favor of the non-moving party, the
Court finds that the Magistrate Judge’s recommendation was sound.
Plaintiff objects to the Magistrate Judge’s recommendation that his equal protection
claim be dismissed for failure to exhaust administrative remedies. Plaintiff attempts to
undercut the Magistrate Judge’s finding that he had not exhausted remedies by submitting
an MDOC memorandum noting that Plaintiff had filed grievances against Defendant
Schubert on April 26, 2009, and July 22, 2009, and that “[s]tep II grievances were file [sic]
and based on the findings the grievance appeals were denied.” (Dkt. No. 68, Ex. A.)
However, Plaintiff offers no indication that he followed the grievance process to step III, as
required for exhaustion, nor has Plaintiff produced any evidence or specific allegations of
interference with the grievance process. Accordingly,

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IT IS HEREBY ORDERED that the February 16, 2012, R&R (Dkt. No. 66) is
APPROVED and ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that Defendant Schubert’s motion for summary
judgment (Dkt. No. 51) is GRANTED in PART. The motion is GRANTED with respect
to Plaintiff’s claim that he was denied use of a microwave of the basis of race. The motion
is DENIED with respect to Plaintiff’s retaliation claim.

Dated: March 22, 2012

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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