Kelley #259579 v. Atkinson, et al

Filing 82

ORDER ADOPTING REPORT AND RECOMMENDATION 80 re 79 : Plaintiff's motion 79 is GRANTED; Defendant Lewis is substituted for Defendant Wilson; Defendant Wilson is DISMISSED; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION

MARCUS KELLEY,
Plaintiff,

Case No. 2:14-CV-117

v.

HON. GORDON J. QUIST

KIMBERLY ATKINSON, et al.,
Defendants.
/
ORDER ADOPTING REPORT AND
RECOMMENDATION
On November 4, 2016, Magistrate Judge Greeley issued a Report and Recommendation (R
& R) recommending that Plaintiff’s motion to correct and/or modify clerical error be granted.
Magistrate Judge Greeley further recommended that Defendant Lewis be reinstated as a Defendant
in this case, that Defendant Lewis be substituted for Defendant Wilson in the amended complaint
(ECF No. 60), and that Defendant Wilson be dismissed. (ECF No. 80 at PageID.328.)
Defendant Lewis has filed an Objection to the R & R, arguing that rather than merely
substituting Lewis for Wilson, the magistrate judge should have required Plaintiff to comply with
the previous two orders directing Plaintiff to file an amended complaint setting forth only his claims
against Defendant Lewis. Pursuant to 28 U.S.C. § 636(b), upon receiving objections to a report and
recommendation, the district judge “shall make a de novo determination of those portions of the
report or specified proposed findings or recommendations to which objection is made.” After
conducting a de novo review of the R & R, Lewis’s Objection, and the pertinent portions of the
record, the Court concludes that the R & R should be adopted.
Essentially, the magistrate judge ordered that Defendant Lewis be substituted for Defendant
Wilson. The delay in this case resulted from Plaintiff’s uncertainty as to the proper Defendant.

Substituting Defendant Lewis for Defendant Wilson, rather than requiring Plaintiff to again amend
his complaint, will not prejudice Defendant Lewis. Plaintiff’s claim or claims are against whomever
handled Plaintiff’s grievance—apparently now confirmed to have been Defendant Lewis. Defendant
Lewis can ascertain Plaintiff’s allegations against her simply by looking to the allegations against
Defendant Wilson.
Therefore,
IT IS HEREBY ORDERED that the November 4, 2016 Report and Recommendation (ECF
No. 80) is ADOPTED, and Plaintiff’s motion (ECF No. 79) is GRANTED.
IT IS FURTHER ORDERED that Defendant Lewis is substituted for Defendant Wilson,
and Defendant Wilson is DISMISSED from the case.

Dated: December 7, 2016

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

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