Dykes #201541 v. Finco et al

Filing 42

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION 32 ; Granting 18 and 23 ; granting 16 and denying 19 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
ROBERT L. DYKES, #201541,
Plaintiff,
-vTHOMAS FINCO, et al.,
Defendants.

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No. 2:17-cv-209
Honorable Paul L. Maloney

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION
Plaintiff Dykes alleges Defendants violated his sincerely held religious beliefs through
their actions denying him alternative meals. Defendants are employees of the Michigan
Department of Corrections.

The magistrate judge issued report (ECF No. 32)

recommending the dispositive of four pending motions. Plaintiff filed objections. (ECF No.
35.)
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).
Objection 1. The magistrate judge recommends granting Defendants' motion for
summary judgment (ECF No. 16) and dismissing Defendants Leach and Rink. Plaintiff's

objection to this recommendation is overruled. Plaintiff failed to name either Leach or Rink
in the relevant grievances. Plaintiff's authority is factually distinct in critical ways. When the
grievance fails to name any defendant, and prison authorities address the claim on the merits,
the prison authorities cannot later assert the failure to exhaust remedies. Here, Plaintiff did
name some defendants, but not others. Defendants are entitled to now argue that Plaintiff
failed to exhaust his remedies as to the individuals not identified in the grievance.
Objection 2. The magistrate judge recommends granting Plaintiff's second motion
for leave to amend (ECF No. 23) and allowing the litigation to proceed against Defendant
McKee only. The magistrate judge recommends finding Plaintiff's first motion to amend
(ECF No. 18) moot. Plaintiff asserts that he did not intend to abandon any claim against
Defendant Guglin through his second motion to amend.
Plaintiff's objection is affirmed. Plaintiff's second motion to amend is not a model of
clarity and this Court must read pro se pleadings liberally. The first exhibit to Plaintiff's
second motion is titled "Proposed Amended Complaint." (ECF No. 23-1 PageID.214.) The
document makes four references to the "attached complaint and exhibits." While Plaintiff
attaches seven exhibits, he does not attach any amended complaint. There is no attached
document that looks similar to the initial pleading or the proposed complaint in the first
motion to amend.
In an abundance of caution, the Court declines to adopt this portion of the R&R.
This lawsuit is still in the early stages of litigation. Defendant McKee will be added to the
lawsuit and will need to be served. Defendant Guglin has not yet been served. Plaintiff

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would certainly be prejudiced were he not able to pursue a claim against Guglin when she
has not yet been brought into the lawsuit.
Objection 3. The Court agrees with the well-supported recommendations of the
magistrate judge that, on the record presented thus far, Plaintiff is not entitled to a preliminary
injunction. Plaintiff's motion for a preliminary injunction (ECF No. 19) will be denied.
Consistent with this Order,
1. The Report and Recommendation (ECF No. 32) ADOPTED IN PART as the Opinion
of this Court.
2. Plaintiff's motions to amend or correct (ECF Nos. 18 and 23) are GRANTED. Going
forward, the controlling pleading will be Plaintiff's Proposed Amended Complaint found in
ECF No. 18 PageID.167-70. Because Plaintiff has conceded that he has no claim against
Defendant Finco, Finco is DISMISSED WITH PREJUDICE.
3. Defendants' motion for summary judgment (ECF No. 16) is GRANTED and Defendants
Rink and Leach are dismissed without prejudice.
4. Plaintiff's motion for a preliminary injunction (ECF No. 19) is DENIED.
5. Defendants McKee and Guglin must be served with a copy of the summons and
complaint.
IT IS SO ORDERED.
Date: February 26, 2019

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

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