Doss #785510 v. Mackie et al
MEMORANDUM OPINION AND ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 60 , Defendants' motion for summary judgment 44 is GRANTED; Defendants Mackie, Place, Huhta, Erkkila, Wealton, Niemi, Frechen, Duquetti, Yankovich, Finegan, McMann, Linder, and Mullen are DISMISSED without prejudice; signed by Judge Janet T. Neff (Judge Janet T. Neff, clb)
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
Case No. 2:16-cv-135
HON. JANET T. NEFF
THOMAS MACKIE, et al.,
MEMORANDUM OPINION AND ORDER
This is a civil rights action brought by a state prisoner under 42 U.S.C. § 1983. On February
13, 2017, United States Magistrate Judge Timothy P. Greeley issued a Report and Recommendation
(“R&R”) recommending that Defendants’ motion for summary judgment (ECF No. 44) be granted
and that the Court dismiss Defendants Mackie, Place, Huhta, Erkkila, Wealton, Niemi, Frechen,
Duquetti, Yankovich, Finegan, McMann, Linder, and Mullen without prejudice. The matter is
before the Court on Plaintiff’s objection to the R&R. (ECF No. 64.)
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 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 objects to the Magistrate Judge’s conclusion that Plaintiff has not supported his
claim that he exhausted or was prevented from exhausting administrative remedies with any
evidence. Plaintiff argues that he has demonstrated “some kind of genuine disputed fact that
contradicts what the defens (sic) provided.” (ECF No. 64, PageID.569.) He cites paragraph 41 of
his complaint, the grievance forms for Grievance AMF 1409-2680-17g, and inmate Jackson’s
affidavit, as evidence to support a genuine dispute of material fact as to whether he fully exhausted
his administrative remedies.
First, paragraph 41 refers to allegations of excessive force and deprivation of food, water,
and other basic necessities from August 15, 2014 through August 18, 2014. (ECF No. 18-1,
PageID.113.) Plaintiff also alleges that, during that time, he requested ARUS Burke to file a
grievance for Plaintiff, and ARUS Burke refused to do so. (Id.) But Grievance AMF 1409-268017g and inmate Jackson’s affidavit are not related to these allegations. The grievance forms and the
affidavit refer to an incident on August 18, 2014, where an officer allegedly ripped up Plaintiff’s
paperwork and flushed it down the toilet. (ECF No. 64-1.) Plaintiff asserts that, among these
papers, were the grievances for his allegations of excessive force and inhumane conditions. Yet
Plaintiff was able to file and complete the administrative process for Grievance AMF 1409-268017g during the same period in which he asserts that he was unable to file a grievance relating to the
excessive force and inhumane condition allegations. Although it appears that Plaintiff fully
exhausted Grievance AMF 1409-2680-17g, it is not relevant to Plaintiff’s allegations of excessive
force and inhumane conditions.
Second, in his objection, Plaintiff does not provide any other evidence to support his
allegations of excessive force and inhumane conditions. The Magistrate Judge previously reviewed
Plaintiff’s claims that he exhausted administrative remedies in Grievance AMF 15-09-2123-28E.
But this grievance was rejected as untimely. Plaintiff argues that he was precluded from filing a
grievance, which justified his untimely filing, but he does not provide any evidence to support this
claim. Rather, the fact that he fully exhausted Grievance AMF 1409-2680-17g contradicts this
claim. Further, the Step III grievance report refutes this claim, which found that Plaintiff offered
no legitimate reasons for his delay. (ECF No. 45-4, PageID.294, PageID.296.) The Magistrate Judge
properly concluded that there was no genuine dispute of material fact that Plaintiff failed to exhaust
his administrative remedies as to his claims for the alleged excessive force and inhumane conditions
The Court finds the R&R to be well-reasoned, and Plaintiff’s objection is without merit.
For the reasons explained by the R&R, the Court will grant Defendants’ motion for summary
judgment (ECF No. 44). Accordingly,
IT IS HEREBY ORDERED that Defendants’ motion for summary judgment (ECF No. 44)
IT IS FURTHER ORDERED that Defendants Mackie, Place, Huhta, Erkkila, Wealton,
Niemi, Frechen, Duquetti, Yankovich, Finegan, McMann, Linder, and Mullen are DISMISSED
IT IS FURTHER ORDERED that Plaintiff’s objection to the R&R (ECF No. 64) is
Date: March 3, 2017
/s/ Janet T. Neff
JANET T. NEFF
UNITED STATES DISTRICT JUDGE
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