Elliot #236879 v. Snyder et al

Filing 19

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 16 ; Defendant's motion for summary judgment for failure to exhaust 7 is denied; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
MICHAEL ELLIOT,
Plaintiff,
CASE No. 2:18-cv-85
v.
HON. ROBERT J. JONKER
KEITH SNYDER,
Defendant.
_______________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed the Magistrate Judge’s Report and Recommendation (ECF No.
16) and Defendant’s Objection to it. (ECF No. 17). Under the Federal Rules of Civil Procedure,
where, as here, a party has objected to portions of a Report and Recommendation, “[t]he district
judge . . . has a duty to reject the magistrate judge’s recommendation unless, on de novo
reconsideration, he or she finds it justified.” 12 WRIGHT, MILLER, & MARCUS, FEDERAL PRACTICE
AND PROCEDURE §

3070.2, at 381 (2d ed. 1997). Specifically, the Rules provide that:

[t]he district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.
The district judge may accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the
magistrate judge with instructions.
FED R. CIV. P. 72(b)(3). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).
The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge; the
Report and Recommendation itself; and Defendant’s objection.

The Magistrate Judge

recommends that defense motion for summary judgment on the basis of failure to exhaust be
denied because Plaintiff cannot be required to grieve non-grievable issues. After its review, the
Court finds that Magistrate Judge Kent’s Report and Recommendation is factually sound and
legally correct.
Defendant objects that the Magistrate Judge misconstrued his argument, and that an
improperly filed grievance (which is what he asserts Plaintiff has done here) cannot serve to
exhaust a prisoner’s claims. (ECF No. 17). Defendants draw too fine a line. The Magistrate Judge
did not misconstrue the defense argument, rather he correctly determined that the argument was
without merit. The Court agrees, on de novo review, that Plaintiff has not failed to exhaust his
claim for the very reasons detailed by the Magistrate Judge.
ACCORDINGLY, IT IS ORDERED:
1. The Report and Recommendation of the Magistrate Judge (ECF No. 16) is
APPROVED and ADOPTED as the Opinion of this Court.
2. Defendant’s motion for summary judgment for failure to exhaust (ECF NO. 8) is
DENIED.

Dated:

May 16, 2019

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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