United States District Court, W.D. Michigan, Southern Division
ORDER ADOPTING REPORT AND RECOMMENDATION
L. Maloney United States District Judge
Thomas Lewis, a prisoner under the control of the Michigan
Department of Corrections, filed a civil rights lawsuit in
which he complains about his treatment. Two groups of
defendants filed motions for summary judgment raising
administrative exhaustion. Lewis filed his own motion for
summary judgment. The Magistrate Judge issued a report
recommending defendants' motions be granted, Lewis'
motion be denied, and the unserved defendants be dismissed.
(ECF No. 87.) Lewis filed objections. (ECF No. 93.)
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).
Unserved Defendants. The Magistrate Judge recommends
dismissing Defendant John Does and More because, more than
one year after the complaint was filed, the two defendants
have not been served. Lewis objects on the basis that the
case management order did not permit discovery regarding the
identity of the unknown defendants.
objection is overruled. Rule 4 of the Federal Rules of Civil
Procedure obligates the plaintiff to serve the summons and
complaint within the time allowed. Here, Lewis was obligated
to provide the names of individuals to the U.S. Marshal for
service of the summons and complaint. Lewis did not do so.
The record demonstrates no attempts by Lewis to identify or
serve the Doe defendants. The case management order limited
the scope of discovery only as to those defendants who filed
a motion for summary judgment on the basis of administrative
exhaustion. (ECF No. 16.) The order did not prevent Lewis
from attempting to learn the names of the unknown people
involved. In response to the service of process on Defendant
More (or Moore), the MDOC indicated that no such person works
or worked at the relevant facility. (ECF No. 14-1
Plaintiff's Motion for Summary Judgment (ECF No. 68.)
Lewis argued he was entitled to summary judgment because of
claim or issue preclusion. The magistrate judge explained why
neither claim nor issue preclusion applied. (R&R at 10
n.3 PageID.1055.) Having reviewed the objections, the Court
does not find a specific objection to the Magistrate
Judge's findings and recommendation concerning Lewis'
motion for summary judgment. In the event the Court
overlooked an objection, the Court agrees with the Magistrate
Judge's summary of the motion, the description of the
relevant law, and the recommendation.
Defendants' Motions for Summary Judgment. The Magistrate
Judge identified the grievances that were exhausted through
Step III. All of the exhausted grievances were rejected,
through Step III, as untimely. Lewis objects, asserting that
the manner in which the defendants responded to the
grievances made the process functionally unavailable.
Lewis' objection is overruled. The Magistrate Judge
accurately summarized the facts in the record and correctly
applied the law to those facts. To be clear, the incidents
alleged in the grievances that were properly exhausted
occurred long before Lewis filed the grievances, which is why
each was denied as untimely. None of Lewis' arguments
address this conclusion.
Preliminary Matters. The Magistrate Judge found that
Lewis' complaint and other declarations were not properly
verified and, therefore, the asserted facts could not be
considered in opposition to the defendants' motions.
Lewis objects. Lewis contends the phrase “under
oath” is the functional equivalent of “under
penalty of perjury.” Lewis also asserts that he
submitted a document curing this problem by swearing under
penalty of perjury.
objection is overruled. First, the supplemental document
suffers the same deficiency-he does not use the “under
penalty of perjury” language required by § 1746.
(See ECF No. 66 PagreID.514.) The declaration
submitted with his objections uses the correct language.
(See ECF No. 94 PageID.1130.) Second, assuming that
Lewis is correct and that the Court should consider the
factual statements in the complaint and response to the
motions to be true, Lewis has not established that the
outcome of the motions would be different. The exhaustion
documents referenced in the motions and the in the R&R
speak for themselves.
the Report and Recommendation (ECF No. 87) is
ADOPTED. Plaintiff Lewis' motion for
summary judgment (ECF No. 68) is DENIED. The
motion for summary judgment filed by Defendants Burt,
Wilkerson and Tanner (ECF No. 34) is
GRANTED. The motion for summary judgment
filed by Defendants Hoover and Decker (ECF No. 71) is
GRANTED. And, Defendants Does and More ...