Sedore v. Landfair et al, No. 2:2022cv10060 - Document 34 (E.D. Mich. 2022)

Court Description: OPINION and ORDER Accepting and Adopting 27 REPORT AND RECOMMENDATION, Granting in Part and Denying in Part 22 MOTION for Summary Judgment on the Basis of Exhaustion with a Brief in Support and a Certificate of Service filed by Brian Stricklin, Sirenna Landfair, MDOC, and Overruling Plaintiff's 28 Objection. Signed by District Judge Gershwin A. Drain. (TMcg)

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Sedore v. Landfair et al Doc. 34 Case 2:22-cv-10060-GAD-KGA ECF No. 34, PageID.264 Filed 12/16/22 Page 1 of 5 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION SCOTT SEDORE, Plaintiff, Case No. 2:22-cv-10060 HON. GERSHWIN A. DRAIN vs. SIRENNA LANDFAIR, et al., Defendants. ____________________________/ ORDER ACCEPTING AND ADOPTING REPORT AND RECOMMENDATION [#27], GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT [#22], AND OVERRULING PLAINTIFF’S OBJECTION [#28] I. INTRODUCTION This matter is before the Court on Defendants Sirenna Landfair’s, Brian Stricklin’s, and the Michigan Department of Corrections’ (MDOC) Motion for Summary Judgment. See ECF No. 22. The matter was referred to Magistrate Judge Kimberly G. Altman, who issued a Report and Recommendation on August 22, 2022, recommending that the Court grant in part and deny in part Defendants’ Motion for Summary Judgment. Plaintiff filed his objection to the Report and Recommendation on September 6, 2022. Defendants have failed to file a 1 Dockets.Justia.com Case 2:22-cv-10060-GAD-KGA ECF No. 34, PageID.265 Filed 12/16/22 Page 2 of 5 Response to the Plaintiff’s objection, and the time for doing so has expired. See Fed. R. Civ. P. 72(b)(2); E.D. Mich. L.R. 72.1(d). For the reasons discussed below, the Court will overrule Plaintiff’s objection, accept and adopt Magistrate Judge Altman’s Report and Recommendation, and grant in part and deny in part the Defendants’ Motion for Summary Judgment. II. 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. The district court may affirm, modify or reverse the Commissioner’s decision, with or without remand. See 42 U.S.C. § 405(g). Under § 405(g), the courts have limited power regarding the Commissioner’s decision, “the findings of the commissioner of social security as to any fact if supported by substantial evidence, shall be conclusive.” Id. Substantial evidence is “more than a scintilla of evidence but less than a preponderance and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” McClanahan 2 Case 2:22-cv-10060-GAD-KGA ECF No. 34, PageID.266 Filed 12/16/22 Page 3 of 5 v. Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006) (quoting Besaw v. Sec’y of Health and Human Servs., 966 F.2d 1028, 1030 (6th Cir. 1976). III. ANALYSIS In her report and recommendation, Magistrate Judge Altman concluded that questions of material fact remain as to whether Plaintiff exhausted his claim against Defendant Landfair by attempting an informal resolution prior to filing his Step I grievance. Magistrate Judge Altman further found that Defendant Stricklin should be granted summary judgment and dismissed without prejudice because Plaintiff does not allege that he attempted to informally resolve his grievance with Defendant Stricklin. She also concluded the record is devoid of evidence that Defendant Florek has authorized the assistant attorney general to make arguments on her behalf, thus the assistant attorney general’s argument that Defendant Florek should be entitled to summary judgment for the same reasons as the other named individual defendants is not well taken. Finally, Magistrate Judge Altman concluded that failure to exhaust administrative remedies is not a viable defense that may be relied upon by the MDOC. See Annabel v. Mich. Dep’t of Corr., No. 1:18-CV-914, 2020 WL 919700, at *1 (W.D. Mich. Feb. 26, 2020) (concluding the MDOC grievance policy does not require the prisoner to name the MDOC in the grievance). 3 Case 2:22-cv-10060-GAD-KGA ECF No. 34, PageID.267 Filed 12/16/22 Page 4 of 5 In his sole objection, Plaintiff asserts the Defendant Alinda Florek is still employed at the MDOC. He objects to the Assistant Attorney General’s claim that Defendant Florek is no longer employed by the MDOC. Plaintiff’s objection fails to address any specific aspect of Magistrate Judge Altman’s recommendation, rather Plaintiff’s objection is directed at the arguments advanced by the assistant attorney general in his summary judgment motion. Because Plaintiff fails to object to any specific portion of the report and recommendation, his objection will be overruled. See Stamtec, Inc. v. Anson, 296 F. App’x 518, 520 (6th Cir. 2008) (“[A] general or non-specific objection to a report and recommendation is tantamount to no objection at all.”). IV. CONCLUSION Accordingly, the Plaintiff’s objection [#28] is OVERRULED. The Court hereby ACCEPTS AND ADOPTS Magistrate Judge Kimberly G. Altman’s August 22, 2022 Report and Recommendation [#27], and GRANTS IN PART AND DENIES IN PART Defendants’ Motion for Summary Judgment [#22]. Defendant Stricklin is DISMISSED WITHOUT PREJUDICE. SO ORDERED. Dated: December 16, 2022 /s/Gershwin A. Drain GERSHWIN A. DRAIN United States District Judge 4 Case 2:22-cv-10060-GAD-KGA ECF No. 34, PageID.268 Filed 12/16/22 Page 5 of 5 CERTIFICATE OF SERVICE Copies of this Order were served upon attorneys of record on December 16, 2022, by electronic and/or ordinary mail. /s/ Teresa McGovern Deputy Clerk 5

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