Frederick Graewe, Plaintiff-appellant, v. John Gluch; Ermler, Officer, Defendants-appellees, 977 F.2d 581 (6th Cir. 1992)

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U.S. Court of Appeals for the Sixth Circuit - 977 F.2d 581 (6th Cir. 1992) Oct. 7, 1992

Before RYAN and SUHRHEINRICH, Circuit Judges, and HIGGINBOTHAM, Senior Circuit Judge.* 


ORDER

Frederick Graewe, a pro se federal prisoner, appeals a district court judgment dismissing his Bivens complaint filed against the warden of the Federal Corrections Institution (FCI) in Milan, Michigan and a mailroom officer at that prison. See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971). This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Seeking monetary relief only, Graewe filed this complaint against the defendants in their individual capacities. He alleged that the defendants violated his constitutional right of access to the courts by improperly refusing to accept a package of legal materials his brother (also a prisoner at another federal correctional facility) had sent to him in the mail. Graewe also alleged that after defendant Ermler rejected the package, it was thereafter lost, thus precluding him from having the necessary legal papers to collaterally challenge his conviction.

The defendants filed a motion to dismiss, or in the alternative, for summary judgment. In response, Graewe filed a motion to amend his complaint which was granted by the district court. A magistrate judge recommended granting summary judgment for the defendants due to the plaintiff's failure to exhaust his administrative remedies. The magistrate judge also recommended dismissal on the merits of plaintiff's claim. After de novo review in light of Graewe's objections, the district court rejected that portion of the magistrate judge's recommendation based on the exhaustion issue but found summary judgment in favor of the defendants was proper after considering the merits of Graewe's case.

Graewe has filed a timely appeal. He raises the same arguments that he raised in the district court. Both parties have filed briefs.

Upon review, we conclude that the district court properly granted the defendants summary judgment because there is no genuine issue of material fact and the defendants are entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986).

Accordingly, we affirm the district court's judgment for the reasons set forth in the district court's order and opinion filed December 11, 1991. Rule 9(b) (3), Rules of the Sixth Circuit.

 *

The Honorable A. Leon Higginbotham, Jr., Senior Circuit Judge, U.S. Court of Appeals for the Third Circuit, sitting by designation