UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

MARVIN BELSER, 

Plaintiff,

v.

SARAH ALTON, ET AL.,

Defendants.

Case No. 14-13848

SENIOR U.S. DISTRICT JUDGE 

ARTHUR J. TARNOW

U.S. MAGISTRATE JUDGE 

PATRICIA T. MORRIS

 /

ORDER ADOPTING REPORT AND RECOMMENDATION [38] AND

GRANTING DEFENDANTS’ MOTION TO DISMISS [29], DENYING

PLAINTIFF’S MOTIONS FOR PRELIMINARY INJUNCTION [19, 33]

AND FOR APPOINTMENT OF COUNSEL [18, 34], DENYING AS MOOT

DEFENDANT’S MOTION TO COMPEL [37] AND DISMISSING

PLAINTIFF’S CLAIMS AGAINST REMAINING DEFENDANTS

On March 9, 2015, the Magistrate Judge issued a Report and Recommendation

(“R&R”)[38]recommending that theCourt grant Defendants’ Motion to Dismiss[29],

deny Plaintiff’s Motions for Preliminary Injunction [19, 33] and for Appointment of

Counsel [18, 34], deny as moot Defendant’s Motion to Compel [37] and dismiss

Plaintiff’s claims against the remaining Defendants. Plaintiff filed an Objection [39]

on March 30, 2015. 

For the reasons stated below, the Court ADOPTS the R&R [38]. Defendants’

Motion to Dismiss[29] is GRANTED; Plaintiff’s Motionsfor Preliminary Injunction

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[19, 33] and for Appointment of Counsel [18, 34] are DENIED; Defendant’s Motion

to Compel [37] ] is DENIED AS MOOT, Plaintiff’s claims against the remaining

Defendants are DISMISSED; and Plaintiff’s Objection [39] is OVERRULED.

STATEMENT OF FACTS

The Court adopts the explanation of facts as set out in the R&R [38]. They read

as follows:

Plaintiff is a pro se prisoner currently incarcerated at Marquette Brach

Prison in Marquette, Michigan. The events that gave rise to the allegations in

the Complaint occurred while Plaintiff was incarcerated at the Saginaw

Correctional Facility (“SRF”), in Saginaw, Michigan, and the Chippewa

Correctional Facility (“URF”) in Kincheloe, Michigan. 

Plaintiff’s complaint does not organize his claims, but they fall into two

basic categories: (1) Defendants’ failure to provide an air mattress, velcro

shoes, and physical therapy, as stated in grievance SRF-2012-10-1890-12I,

including medical malpractice and negligence, and (2) defendants’ threats that

if Plaintiff did notsign off on the above grievance, he would be “sent up north”

to a prison in Michigan’s upper peninsula, and these threats materialized when

Plaintiff was transferred to the northern prison. 

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Plaintiff seeks to “[h]ave all of [his] medical special accommodations

returned, [and to see] . . . a medical assistant.” (Doc. 1 at ID 5.) Plaintiff also

seeks the maximum “amount allowed by the courts, court costs and attorneys

fees and filing fees.” (Doc. 1 at ID 8.) 

On December 22, 2104, 2014, [sic.] Defendants Sarah Alton, Susan

McCauley,Melissa LaPlaunt, William Borgerding, Melissa Grabowski, O’Bell

Thomas Winn, Donald Ricumstrict,James Zummer, and Todd McLean moved

to dismiss or for summary judgment. (Doc. 29.) Plaintiff responded on

February 23, 2015. (Doc. 36.) Plaintiff also filed two motions for appointment

of counsel (Docs. 18, 34) and two motions for preliminary injunction and/or

protective order. (Docs. 19, 33.) 

In the motion to dismiss or for summary judgment, defendants contend

that Plaintiff’s complaint should be dismissed because Plaintiff failed to

exhaust administrative remedies, failed to state a claim upon which relief can

be granted, failed to allege the personal involvement ofseveral defendants, and

because state officials sued in their official capacity are entitled to Eleventh

Amendment immunity. Based on my recommendation that summary judgment

should be granted on the merits of the claims, I do not reach defendants’

argumentsregarding personal involvement orEleventh Amendment immunity.

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Also, the analysis below applies to the claims against non-moving defendants

Josh Buskirk and Michael Brostoski. Consequently, I recommend dismissing

the claims against them. 

LEGAL STANDARD

The Court reviews objections to an R&R on a dispositive issue de novo. 28

U.S.C. § 636(b)(1)(C). “A judge of the court may accept, reject, or modify, in whole

or in part, the findings or recommendations made by the magistrate judge.” Id.

Defendants move to dismiss Plaintiff’s Complaint pursuant to Federal Rules of Civil

Procedure 12(b)(6). Rule 12(b)(6) tests the legal sufficiency of a complaint. To

survive a motion to dismiss or for judgment on the pleadings, a complaint must “state

a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007). “While legal conclusions can provide the framework of a complaint, they

must be supported by factual allegations. When they are well-pleaded factual

allegations, a court should assume their veracity and then determine whether they

plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950

(2009).

ANALYSIS

The R&R [38] recommends the Court grant Defendants’ Motion to Dismiss [29]

because Plaintiff has not properly exhausted his administrative remedies. Specifically,

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five of the six grievances he filed were still pending when he filed this action. The

R&R [38] goes on to state that even if Plaintiff’s claims were not procedurally barred

they would fail on the merits. The R&R [38] further recommends the Court conclude

that Plaintiff’s sixth grievance—which he properly exhausted—fails on its merits. 

Plaintiff’s Objection [39] recites the precedent from Jones v. Bock, 549 U.S. 199

(2007) and seems to agree with the R&R’s [38] recommendation that the Court should

dismiss his non-exhausted claims.

The remainder of Plaintiff’s Objection [39] is not responsive to the R&R’s [38]

analysis. For the foregoing reasons and the reasons contained in the R&R [38] the

Court HEREBY ADOPTS the R&R [38]. Accordingly,

IT IS ORDERED that Defendants’ Motion to Dismiss [29] is GRANTED; 

IT IS FURTHER ORDERED that Plaintiff’s Motions for Preliminary

Injunction [19, 33] are DENIED;

IT IS FURTHER ORDERED that Plaintiff’s Motions for Appointment of

Counsel [18, 34] are DENIED;

IT IS FURTHER ORDERED that Defendant’s Motion to Compel [37] is

DENIED AS MOOT, 

IT IS FURTHER ORDERED that Plaintiff’s claims against the remaining

Defendants are DISMISSED;

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IT IS FURTHER ORDERED that Plaintiff’s Objection [39] is OVERRULED.

THIS CASE IS CLOSED.

SO ORDERED.

 s/Arthur J. Tarnow

 Arthur J. Tarnow

Dated: July 23, 2015 Senior United States District Judge

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