Alexander #731077 v. Makela et al

Filing 89

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 75 re 57 : Defendants' Motion for Summary Judgment 57 is GRANTED IN PART AND DENIED IN PART; Plaintiff's claims arising from confiscation of his television set are DISMISSED WITHOUT PREJUDICE; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

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

D’ANDRE ALEXANDER #731077,
Plaintiff,

Case No. 2:16-CV-49

v.

HON. GORDON J. QUIST

UNKNOWN MAKELA, et al.,
Defendants.

________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
On October 18, 2017, Magistrate Judge Greeley issued a Report and Recommendation (R
& R) recommending that the Court grant in part and deny in part Defendants’ motion for summary
judgment on Plaintiff’s remaining claims. In particular, the magistrate judge recommended that
the Court deny the motion with regard Plaintiff’s retaliation and conspiracy claims against
Defendants Lee, Pelkola, and Leece arising from the December 17, 2014, cell search and grant the
motion with regard to Plaintiff’s claims against Defendants Makela and Gooseberry arising from
the December 17th cell search. (ECF No. 75 at PageID.445.) The magistrate judge further
recommended that Plaintiff’s claims relating to the confiscation of his television set be dismissed
without prejudice because Plaintiff asserted such claims in another case. (Id. at PageID.443, 445.)
Plaintiff has filed an Objection to the R & R, specifically, the magistrate judge’s conclusion
that Plaintiff failed to offer any evidence that Defendant Gooseberry was involved in the
conspiracy relating to the December 17th cell search. Plaintiff argues in his Objection that the
magistrate judge failed to consider Plaintiff’s allegation that on January 30, 2015, Defendant

Gooseberry followed Defendant Lee’s instruction or command to conduct a retaliatory strip search
of Plaintiff in the yard. Plaintiff argues that Defendant Gooseberry should thus remain in the case
based on Gooseberry’s violation of Plaintiff’s First and Eighth Amendment rights, as well as
conspiracy under 42 U.S.C. § 1983.
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, Plaintiff’s Objection, and the pertinent portions of the record, the Court
concludes that the R & R should be adopted.
Plaintiff’s objection lacks merit. In the R & R, the magistrate judge noted that Plaintiff
failed to offer any evidence that Defendant Gooseberry was involved in conspiracy relating to the
December 17, 2014, cell search. Plaintiff does not take issue with that conclusion. Plaintiff cannot
rely on his allegation that Defendant Gooseberry conducted a retaliatory strip search of Plaintiff
on January 30, 2015, because such claim was previously dismissed for lack of exhaustion. In his
September 16, 2016, Report and Recommendation, which Judge Bell subsequently adopted, the
magistrate judge recommended that Defendants’ motion for summary judgment based on lack of
exhaustion be denied as to the December 17th cell search and the confiscation of Plaintiff’s
television but granted as to all other claims. (ECF No. 25 at PageID.191; ECF No. 31 at
PageID.211.) Thus, Plaintiff’s claims against Defendant Gooseberry based on the January 30,
2015, strip search were previously dismissed for lack of exhaustion. Plaintiff may not add them
back by asserting that they somehow relate to the December 17 cell search.
Therefore,

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IT IS HEREBY ORDERED that the October 18, 2017, Report and Recommendation
(ECF No. 75) is approved and adopted as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (ECF No.
57) is GRANTED IN PART AND DENIED IN PART. The motion is DENIED with regard to
Plaintiff’s claims against Defendants Lee, Pelkola, and Leece arising from the December 17th cell
search and GRANTED with regard to Plaintiff’s claims against Defendants Makela and
Gooseberry arising from the December 17th cell search.
IT IS FURTHER ORDERED that Plaintiff’s claims arising from the confiscation of his
television set are DISMISSED WITHOUT PREJUDICE.

Dated: January 9, 2018

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

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