Mays #218101 v. Pynnonen et al

Filing 67

ORDER ADOPTING REPORT AND RECOMMENDATION 59 and granting 29 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MARCUS D. MAYS, #218101,
Plaintiff,
-vUNKNOWN PYNNONEN, et al.,
Defendants.

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No. 2:17-cv-167
Honorable Paul L. Maloney

ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff Marcus May, a prisoner under the control of the Michigan Department of
Corrections, alleges various claims against MDOC employees. Defendants filed a motion
for partial summary judgment alleging Plaintiff's failure to exhaust administrative grievances.
(ECF No. 29.) The magistrate judge issued a report recommending the Court grant the
motion. (ECF No. 59.) Plaintiff filed objections. (ECF No. 60.)
After being served with a report and recommendation (R&R) issued by a magistrate
judge, a party has fourteen days to file written objections to the proposed findings and
recommendations. 28 U.S.C. ' 636(b)(1); Fed. R. Civ. P. 72(b)(2). A district court judge
reviews de novo the portions of the R&R to which objections have been filed. 28 U.S.C. '
636(b)(1); Fed. R. Civ. P. 72(b)(3). Only those objections that are specific are entitled to a
de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per
curiam).
The magistrate judge recommends the following: (1) dismissing Defendants Grueb
and Wealton without prejudice, (2) dismissing without prejudice Plaintiff's retaliation claim

against all named defendants except for Defendant Corrigan, and (3) dismissing Plaintiff'
food poisoning claim without prejudice.
In his objection, Plaintiff asserts generally that he has attempted to exhaust his
grievances and refers to multiple exhibits attached to his objection. Defendants filed a
response insisting that they have no record that they received any of the attached exhibits.
Plaintiff's objection is overruled. When presented with a motion, the opposing party
has an obligation to answer it. Plaintiff did not submit the documents attached to his
objection as part of his response to the initial motion. Objections are not opportunities to
present evidence that could have and should have been presented as part of the initial motion
or response. The Court also finds telling that none of the exhibits submitted as part of
Plaintiff's objection bear any markings suggesting that they were received by MDOC as part
of the grievance process.
For these reasons, the Report and Recommendation (ECF No. 59) is ADOPTED as
the Opinion of this Court. Defendants' motion for partial summary judgment (ECF No. 29)
is GRANTED and (1) Defendants Grueb and Wealton are dismissed without prejudice; (2)
Plaintiff's retaliation claims against all defendants except Defendant Corrigan is dismissed
without prejudice; and (3) Plaintiff's food poisoning claim is dismissed without prejudice.
IT IS SO ORDERED.
Date: February 26, 2019

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

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