United States District Court, W.D. Michigan, Northern Division
L. Maloney, United States District Judge.
a civil rights action brought by a state prisoner under 42
U.S.C. § 1983. On October 23, 2017, United States
Magistrate Judge Timothy P. Greeley issued a Report &
Recommendation (“R & R”) recommending that
the Court grant Defendants' motion for summary judgment
based on Plaintiff's failure to properly exhaust his
administrative remedies. (ECF No. 51.) The matter is before
the Court on Plaintiff's Objections to the R & R.
(ECF No. 56.)
Court is required to make a de novo determination of those
portions of the R & R to which specific objections have
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).
two-page, handwritten objections are far from a model of
clarity, but the Court will endeavor to construe them fairly
and liberally in light of Plaintiff's pro se status.
begins by asserting that he complied with the Court's
September 15, 2016 Order which instructed Plaintiff on how to
achieve service or amend his complaint. (ECF No. 23.)
Plaintiff's compliance or noncompliance with that order
has no bearing on the Defendants' motion for summary
judgment based solely on Plaintiff's failure to exhaust
his administrative remedies. Plaintiff also informs the Court
that he is seeking a writ of certiorari from the United
States Supreme Court “for disqualification of Judges,
Justices, and Magistrate Judges for intentional bad acts . .
. .” (ECF No. 56 at PageID.300.) This, too, is wholly
irrelevant to the instant proceedings.
Plaintiff shifts course, asserting that “the Supreme
Court held that whether the inmate failed to exhaust is an
affirmative defense that must be raised by prison staff or it
is waived. The Court reversed the Sixth Circuit's
requirement that an inmate had to specifically provide the
name of the prison staff in the grievance was dismissed, the
Supreme Court struck the ‘total exhaustion
dismissal.'” (Id.) Plaintiff continues,
noting that “[p]ursuant to Jones, if a
complaint contains an unexhausted claim . . . the unexhausted
part should be dismissed without prejudice, and the rest of
the lawsuit should proceed.” (Id.)
assertions are valid statements of law, but they do not aid
him here. First, the magistrate judge properly applied the
failure to exhaust as an affirmative defense and held the
Defendants to their burden for asserting it. (See
ECF No. 51 at PageID.284.) Next, Plaintiff appears to argue
that the magistrate judge erred by dismissing the entirety of
the case, rather than dismissing only unexhausted claims.
However, the magistrate judge correctly concluded that
Plaintiff did not exhaust any of his claims against
the Defendants remaining in the case. (See Id. at
PageID.288-90 (listing each of Plaintiff's grievances and
indicating how each grievance remained unexhausted).)
Therefore, the mandate of Jones- dismissing only the
unexhausted claims and letting any properly exhausted claims
proceed- is not applicable to Plaintiff. See Jones v.
Bock, 549 U.S. 199 (2009).
Plaintiff's objections lack merit, even when construed
with all liberality. With regard to the sections of the
R&R not specifically objected to, the Court has reviewed
the issues presented and concludes that the R&R correctly
analyzes the issues and makes a sound recommendation.
Accordingly, IT IS ORDERED that the October
23, 2017 R & R (ECF No. 51) is APPROVED
and ADOPTED as the opinion of the Court.
IS FURTHER ORDERED that Plaintiff's Objections
to the R&R (ECF No. 56) are OVERRULED.
IS FURTHER ORDERED that Defendants' motion for
summary judgment (ECF No. 42) is GRANTED.
IS FURTHER ORDERED that Plaintiff's unexhausted
claims be dismissed without prejudice.
district court must issue a certificate of appealability
either at the time the petition for writ of habeas corpus is
denied or upon the filing of a notice of appeal. Castro
v. United States, 310 F.3d 900, 903 (6th Cir. 2002) (per
curiam). A court may issue a certificate of appealability
“only if the applicant has made a substantial showing
of the denial of a constitutional right.” 28 U.S.C.
§ 2253(c)(2). See Miller-El v. Cockrell, 537
U.S. 322, 337 (2003). To satisfy this standard, the
petitioner must show that “reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were ‘adequate to deserve
encouragement to proceed further.'” Id.
(quoting Slack v. McDaniel, 529 U.S. 473, 483
(2000)). Courts should undertake an individualized
determination of each claim presented by the petitioner when
considering whether to issue a certificate of appealability.
Murphy v. Ohio, ...