Belser #352904 v. Woods et al

Filing 58

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 51 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MARVIN BELSER,
PLAINTIFF,
-VJEFFREY WOODS, ET AL.,
DEFENDANTS.

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NO. 2:16-CV-134
HONORABLE PAUL L. MALONEY

ORDER
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. On
October 23, 2017, United States Magistrate Judge Timothy P. Greeley issued a Report &
Recommendation (“R & R”) recommending that the Court grant Defendants’ motion for
summary judgment based on Plaintiff’s failure to properly exhaust his administrative
remedies. (ECF No. 51.) The matter is before the Court on Plaintiff's Objections to the
R & R. (ECF No. 56.)
The Court is required to make a de novo determination of those portions of the
R & R to which specific objections have been made, and may accept, reject, or modify any
or all of the Magistrate Judge's findings or recommendations. 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).
Plaintiff’s two-page, handwritten objections are far from a model of clarity, but the
Court will endeavor to construe them fairly and liberally in light of Plaintiff’s pro se status.

Plaintiff begins by asserting that he complied with the Court’s September 15, 2016
Order which instructed Plaintiff on how to achieve service or amend his complaint. (ECF
No. 23.) Plaintiff’s compliance or noncompliance with that order has no bearing on the
Defendants’ motion for summary judgment based solely on Plaintiff’s failure to exhaust his
administrative remedies. Plaintiff also informs the Court that he is seeking a writ of certiorari
from the United States Supreme Court “for disqualification of Judges, Justices, and
Magistrate Judges for intentional bad acts . . . .” (ECF No. 56 at PageID.300.) This, too, is
wholly irrelevant to the instant proceedings.
Finally, Plaintiff shifts course, asserting that “the Supreme Court held that whether
the inmate failed to exhaust is an affirmative defense that must be raised by prison staff or it
is waived. The Court reversed the Sixth Circuit’s requirement that an inmate had to
specifically provide the name of the prison staff in the grievance was dismissed, the Supreme
Court struck the ‘total exhaustion dismissal.’” (Id.) Plaintiff continues, noting that “[p]ursuant
to Jones, if a complaint contains an unexhausted claim . . . the unexhausted part should be
dismissed without prejudice, and the rest of the lawsuit should proceed.” (Id.)
Plaintiff’s assertions are valid statements of law, but they do not aid him here. First,
the magistrate judge properly applied the failure to exhaust as an affirmative defense and
held the Defendants to their burden for asserting it. (See ECF No. 51 at PageID.284.) Next,
Plaintiff appears to argue that the magistrate judge erred by dismissing the entirety of the
case, rather than dismissing only unexhausted claims. However, the magistrate judge
correctly concluded that Plaintiff did not exhaust any of his claims against the Defendants
remaining in the case. (See id. at PageID.288–90 (listing each of Plaintiff’s grievances and
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indicating how each grievance remained unexhausted).) Therefore, the mandate of Jones—
dismissing only the unexhausted claims and letting any properly exhausted claims proceed—
is not applicable to Plaintiff. See Jones v. Bock, 549 U.S. 199 (2009).
Thus, Plaintiff’s objections lack merit, even when construed with all liberality. With
regard to the sections of the R&R not specifically objected to, the Court has reviewed the
issues presented and concludes that the R&R correctly analyzes the issues and makes a sound
recommendation. Accordingly,
IT IS ORDERED that the October 23, 2017 R & R (ECF No. 51) is APPROVED
and ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s Objections to the R&R (ECF No. 56)
are OVERRULED.
IT IS FURTHER ORDERED that Defendants’ motion for summary judgment (ECF
No. 42) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s unexhausted claims be dismissed
without prejudice.
JUDGEMENT TO FOLLOW.
CERTIFICATE OF APPEALABILITY
A district court must issue a certificate of appealability either at the time the petition
for writ of habeas corpus is denied or upon the filing of a notice of appeal. Castro v. United

States, 310 F.3d 900, 903 (6th Cir. 2002) (per curiam). A court may issue a certificate of
appealability “only if the applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). See Miller-El v. Cockrell, 537 U.S. 322, 337
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(2003). To satisfy this standard, the petitioner must show that “reasonable jurists could
debate whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were ‘adequate to deserve encouragement to
proceed further.’” Id. (quoting Slack v. McDaniel, 529 U.S. 473, 483 (2000)). Courts should
undertake an individualized determination of each claim presented by the petitioner when
considering whether to issue a certificate of appealability. Murphy v. Ohio, 551 F.3d 485,
492 (6th Cir. 2009). Here, the Court concurs with the Magistrate Judge’s recommendation
that any appeal of this matter would not be taken in good faith. See McGore v.

Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997); 28 U.S.C. § 1915(a)(3).
Date: November 7, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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