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Threet v. Phillips

United States District Court, Eastern District of Michigan, Southern Division

May 22, 2015

MICHAEL THREET, Plaintiff,
v.
D. PHILLIPS, et al., Defendants.

ORDER GRANTING PLAINTIFF’S MOTIONS FOR LEAVE TO FILE AN AMENDED COMPLAINT AND ORDER REJECTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION AS MOOT

BERNARD A. FRIEDMAN SENIOR UNITED STATES DISTRICT JUDGE

This matter is presently before the Court on defendants’ motion for summary judgment [docket entry 21] and plaintiff’s motions for leave to file an amended complaint [docket entries 27 & 31].

Plaintiff seeks leave to file an amended complaint to “correct errors in his research, writing, and calculations.” Pl.’s Mot. Defendants have not responded to these motions and the time for them to do so has expired. As leave to amend must be freely granted, see, e.g., Shell v. Marks Oil Co., 830 F.2d 68 (6th Cir. 1987), and defendants apparently do not oppose it, the Court shall grant plaintiff’s motions and deem the proposed amended complaint [docket entry 30] to be filed as of the date of this order.

As to defendants’ motion for summary judgment, Magistrate Judge R. Steven Whalen has submitted a Report and Recommendation (“R&R”) in which he recommends that defendants’ motion, which he construes as an unenumerated motion under Fed.R.Civ.P. 12, be denied. Neither party has objected to the R&R and the objection period has expired.

The Court agrees with the magistrate judge’s application of Boyd v. Corrs. Corp. of Am., 380 F.3d 989, 994 (6th Cir. 2006), to refute defendants’ argument that plaintiff failed to properly exhaust his administrative remedies because he filed his complaint before receiving a Step III grievance response. However, defendants’ motion relates to a complaint that has now been superseded by an amended complaint. The Court therefore rejects the R&R on the basis that the underlying motion is moot.

SO ORDERED.


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