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Ayotte v. Stemen

United States District Court, E.D. Michigan, Southern Division

February 8, 2018

Paul Ayotte, Plaintiff,
v.
Stemen, et al., Defendants.

          STEPHANIE DAWKINS DAVIS MAGISTRATE JUDGE

          ORDER ADOPTING REPORT AND RECOMMENDATION [80]; OVERRULING PLAINTIFF'S OBJECTIONS [82]; AND DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT [63]

          ARTHUR J. TARNOW SENIOR UNITED STATES DISTRICT JUDGE

         Plaintiff Paul Ayotte filed the instant prisoner civil rights action on October 26, 2015. Defendants Visconti, Bridges, Stemen, and Neuberger filed a Motion for Summary Judgment Based on Exhaustion [63] on April 7, 2017. Plaintiff filed a Response [67] on May 2, 2017 and a Second Response [68] on May 11, 2017. Defendants filed a Reply [72] on June 30, 2017. Plaintiff filed a Response to Reply [73] on July 18, 2017.

         On December 8, 2017, the Magistrate Judge issued a Report and Recommendation (“R&R”) [80] recommending that the Court deny Defendants' Motion for Summary Judgment on the issue of exhaustion and order that the matter be resolved in a one-day bench trial. The R&R further recommends that counsel be appointed for Plaintiff before the bench trial is held.

         Plaintiff filed Objections [82] to the R&R on December 27, 2017.

         For the reasons stated below, the R&R [80] is ADOPTED; Plaintiff's Objections [82] are OVERRULED; and Defendants' Motion for Summary Judgment [63] is DENIED.

         PROCEDURAL BACKGROUND

         I. Defendants' First Motion for Summary Judgment [20]

         On December 22, 2015, Defendants filed their first Motion for Summary Judgment [20]. On August 11, 2016, the Magistrate Judge issued an R&R [48] recommending that the Court grant in part and deny in part Defendants' Motion for Summary Judgment [20].

         On September 20, 2016, the Court adopted in part the R&R [48]. [Dkt. #51]. In its Order [51], the Court dismissed all of Plaintiff's claims except those against Defendants Visconti and Bridges for alleged retaliation under the First Amendment and against Defendants Stemen, Benson, and Neuberger for alleged conspiracy to falsify a misconduct ticket. Specifically, the Court held that Defendants failed to show that Plaintiff's claim for conspiracy to falsify a misconduct ticket claim had not been exhausted. [Dkt. #51 at 13].

         On August 31, 2017, Plaintiff filed a Motion to Vacate its Previous Order Granting Summary Judgment [75]. The Court denied the Motion to Vacate [75] on November 28, 2017.

         II. Defendants' Second Motion for Summary Judgment Based on Exhaustion [63]

         Defendants filed the instant Motion for Summary Judgment Based on Exhaustion [63] on April 7, 2017. Plaintiff filed a Response [67] on May 2, 2017 and a Second Response [68] on May 11, 2017. On June 30, 2017, Defendants filed a Reply [72], in which they conceded that there are material disputed facts concerning exhaustion and proposed that the Court hold a bench trial to resolve the factual disputes.

         On December 8, 2017, the Magistrate Judge issued the instant R&R [80]. Plaintiff filed Objections [82] to the R&R [80] on December 27, 2017.

         III. Service and Discovery Motions

         On January 5, 2016, Plaintiff filed a Motion to Compel Service [22]. On June 29, 2016, the Magistrate Judge issued an Order [46], which, inter alia, denied as ...


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