United States District Court, E.D. Michigan, Southern Division
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.
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
LAW & ANALYSIS
Standard of Review
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
Plaintiff's Objections to the Report and
Objection No. 1
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
Objection No. 2
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.
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