United States District Court, W.D. Michigan, Southern Division
ORDER APPROVING AND ADOPTING REPORT AND
RECOMMENDATION
ROBERT
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE
The
Court has reviewed Magistrate Judge Vermaat’s Report
and Recommendation in this matter (ECF No. 31) and
Defendant’s Objections (ECF No. 32). Under the Federal
Rules of Civil Procedure, where, as here, a party has
objected to portions of a Report and Recommendation,
“[t]he district judge . . . has a duty to reject the
magistrate judge’s recommendation unless, on de novo
reconsideration, he or she finds it justified.” 12
Wright, Miller, & Marcus, Federal Practice and Procedure,
§ 3070.2, at 451 (3d ed. 2014). Specifically, the Rules
provide that:
The district judge must determine de novo any part of the
magistrate judge’s disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Fed. R. Civ. P. 72(b)(3). De novo review in these
circumstances requires at least a review of the evidence
before the Magistrate Judge. Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). The Court has reviewed
de novo the claims and evidence presented to the Magistrate
Judge; the Report and Recommendation itself; and
Defendant’s Objections. The Court finds the Magistrate
Judge’s Report and Recommendation, which recommends
denying Defendant’s motion for summary judgment based
on failure to exhaust (ECF No. 18), factually sound and
legally correct.[1]
The
Magistrate Judge carefully and thoroughly considered the
evidentiary record, the parties’ arguments, and the
governing law. He properly found that Defendant failed to
show the absence of a genuine issue as to material fact
relating to Plaintiff’s exhaustion of administrative
remedies. Invoking Siggers v. Campbell, 652 F.3d 681
(6th Cir. 2011), Defendant premises her objections primarily
on Plaintiff’s alleged failure to raise retaliation
during the hearing on his misconduct ticket.[2] She claims that
Siggers requires a prisoner to exhaust a retaliation
claim based on a misconduct ticket during the misconduct
hearing itself, rather than in a separate grievance.
The
Magistrate Judge considered Siggers and found that
even if Plaintiff failed to mention retaliation in his
misconduct hearing, record evidence indicates that Plaintiff
raised the issue during his appeal. (ECF No. 21-1,
PageID.150.) The officer deciding the appeal did not rely on
a procedural default alone – at least not on this
record. And so the present record does not rule out a waiver
of any exhaustion problem. See Reed-Bay v.
Pramstaller, 603 F.3d 322, 325 (6th Cir. 2010)
(“An exception to this rule [requiring complete
exhaustion in the manner the State provides] is that prison
officials waive any procedural irregularities in a grievance
when they nonetheless address the grievance on the
merits.”). The Magistrate Judge properly concluded that
because the record does not establish that Plaintiff failed
to exhaust his administrative remedies, Defendant is not
entitled to summary judgment based on failure to
exhaust.[3] None of Defendant’s objections
change this fundamental analysis.
ACCORDINGLY,
IT IS ORDERED:
1. The Report and Recommendation of the Magistrate Judge (ECF
No. 31), as amplified by this Order, is APPROVED AND
ADOPTED as the opinion of the Court.
2. Plaintiff’s Motion for Temporary Restraining Order
(ECF No. 4) is DENIED.
3. Defendant’s Motion for Summary Judgment (ECF No. 18)
is DENIED.
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Notes:
[1] The Report and Recommendation also
recommends denying Plaintiff’s Motion for Temporary
Restraining Order (ECF No. 4). Plaintiff has filed no
objection, and the deadline for objection has passed.
[2] Plaintiff includes an unsworn
statement in his motion papers that he did raise retaliation
to the RUM in charge of the hearing and that the officer
omitted the claim from the misconduct ...