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Sourander v. Hanft

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

September 17, 2019

PATRICK ALAN SOURANDER, Plaintiff,
v.
SHERIFF HOWARD HANFT, et al., Defendants.

         ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION [#56], OVERRULING PLAINTIFF'S OBJECTIONS [#59], GRANTING DEFENDANTS' MOTION TO DISMISS AND FOR SUMMARY JUDGMENT [#31], DENYING PLAINTIFF'S MOTION TO CONDUCT DISCOVERY [#54] AND DISMISSING ACTION

          Gershwin A. Drain United States District Judge.

         I. INTRODUCTION

         Presently before the Court in this 42 U.S.C. § 1983 prisoner civil rights action is Magistrate Judge R. Steven Whalen's Report and Recommendation, filed on August 7, 2019. Magistrate Judge Whalen recommends that the Court grant the Defendants' Motion to Dismiss and Motion for Summary Judgment. Specifically, Magistrate Judge Whalen recommends that Plaintiff's First Amendment “legal” mail claim be dismissed with prejudice because the mail was not legal mail and therefore it was appropriate for the jail officials to open and inspect it for contraband. Magistrate Judge Whalen further recommends that Plaintiff's remaining Fourth, Fifth, Sixth and Fourteenth Amendment claims, as well as his state law claims, be dismissed without prejudice based on Plaintiff's failure to exhaust his administrative remedies with respect to these claims. Plaintiff filed his objections on September 12, 2019. For the reasons that follow, the Court will overrule Plaintiff's objections.

         II. LAW & ANALYSIS

         A. Standard of Review

         Title 28 U.S.C. § 636 sets forth the standard of review used by the Court when examining a report and recommendation. The Court, “shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). This Court has the power to, “accept, reject or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id.

         B. Plaintiff's Objections to the Report and Recommendation

         i. Objection No. 1

         In his first objection, Plaintiff complains that the Magistrate Judge erred by converting Defendants' Motion to Dismiss into a Motion for Summary Judgment without conducting discovery. Plaintiff's objection is meritless. Defendants' motion was brought pursuant to both Rule 12(b)(6) and Rule 56 of the Federal Rules of Civil Procedure. ECF No. 293, PageID. 293. The Plaintiff responded to the motion, as well as furnished exhibits and his declaration. Thus, Plaintiff had fair notice that the motion was presented as a motion for summary judgment and was given an opportunity to respond.

         ii. Objection No. 2

         Next, Plaintiff objects to the Magistrate Judge's consideration of Defendants' exhibits, filed along with Defendant's Reply brief. This objection likewise lacks merit. In their Reply brief, Defendants presented arguments and documents to rebut the claims made by Plaintiff in his Response to Defendants' Motion to Dismiss and/or for Summary Judgment. Defendants included the two grievances that Plaintiff filed while detained at the Ogemaw County Jail, which had already been provided in their original motion. Defendants also attached the prison grievance policy to rebut Plaintiff's claim that the jail did not have an administrative grievance procedure. Lastly, Defendants also included documents evidencing that Plaintiff had received, and acknowledged receipt of the responses to his grievances in order to rebut Plaintiff's claim that he never received responses to his grievances.

         It was appropriate for the Magistrate Judge to consider these attachments since they addressed arguments in Plaintiff's Response brief. See Smith v. Burns Med. Ctr., 779 F.2d 1173, 1175 n.6 (6th Cir. 1986) (illustrating that a district court may consider attachments filed after a summary judgment motion is submitted where a defendant seeks to address new arguments presented in the plaintiff's response); see also Baugh v. City of Milwaukee, 823 F.Supp. 1452, 1457 (E.D. Wis. 1993), aff'd 41 F.3d 1510 (7th Cir. 1994) (“[W]here the reply affidavit merely responds to matters placed in issue by the opposition brief and does not spring upon the opposing party new reasons for the entry of summary judgment, reply papers - both briefs and affidavits - may properly address those issues.”). Because Defendant's Reply brief and attached exhibits addressed Plaintiff's arguments in his Response, the Magistrate Judge did not err in considering the exhibits. This objection is overruled.

         iii. ...


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