UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

ROBERT SILER,

Plaintiff, Case No. 08-CV-15077-DT

v. Honorable Patrick J. Duggan

W. BALDWIN, REBECCA J. ROBINSON,

WHIPPLE, PATRICIA L. CARUSO,

KAREN R. HALLIDAY, C. WASHINGTON,

K. MORGAL, DAVID L. BERGH, J. 

ARMSTRONG, and JOHN DOE, 

Defendants.

_____________________________________/

OPINION AND ORDER

At a session of said Court, held in the U.S.

District Courthouse, Eastern District 

of Michigan, on October 8, 2009.

PRESENT: THE HONORABLE PATRICK J. DUGGAN

U.S. DISTRICT COURT JUDGE

Robert Siler (“Plaintiff”), a state prisoner, filed this civil action against defendants

pursuant to 42 U.S.C. § 1983 on December 9, 2008. In his complaint, Plaintiff alleges

that defendants violated his Eighth Amendment rights when he was denied medical

treatment after he fell out of his bed, hit his head on the concrete floor, and aggravated a

pre-existing spinal injury on July 28, 2008. This Court referred all pre-trial proceedings

in this case to Magistrate Judge Mona K. Majzoub on March 9, 2009. As part of the

pre-trial proceedings, Magistrate Judge Majzoub considered a Motion to Dismiss filed by

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Defendant Halliday on May 8, 2009, and a second Motion to Dismiss filed by defendants

Bergh, Armstrong, Whipple, Caruso, Washington, and Morgal on May 19, 2009.

On June 16, 2009, Magistrate Judge Majzoub issued a Report and

Recommendation (“R&R”) recommending that this Court grant Defendant Halliday’s

Motion to Dismiss. The next day, Magistrate Judge Majzoub issued an R&R

recommending that this Court grant the second Motion to Dismiss by defendants

Whipple, Caruso, Armstrong, Morgal, Washington, and Bergh. 

On July 16, 2009, Plaintiff filed objections to the R&Rs along with a Motion for

Voluntary Dismissal of defendants Armstrong, Morgal, Washington, Bergh, and Halliday. 

On August 19, 2009, Magistrate Judge Majzoub issued an R&R recommending that the

Court grant Plaintiff’s motion for voluntary dismissal as to defendants Washington,

Morgal, and Armstrong, but deny the motion as to defendants Bergh and Halliday. Based

on the reasoning in her prior R&Rs, Magistrate Judge Majzoub recommends that Bergh

and Halliday be dismissed with prejudice. After obtaining an extension, Plaintiff filed an

objection to this third R&R on September 18, 2009.

I. Standard of Review

The parts of the R&R to which objections are made will be reviewed by the Court

de novo. See Fed. R. Civ. P. 72(b); Thomas v. Halter, 131 F. Supp. 2d 942, 944 (E.D.

Mich. 2001). The Court, however, “is not required to articulate all of the reasons it

rejects a party’s objections.” Id. (citations omitted); see also Tuggle v. Seabold, 806 F.2d

87, 92 (6th Cir. 1986). 

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Because the Court is granting Plaintiff’s Motion for Voluntary Dismissal in its entirety,

the Court does not independently address Plaintiff’s objection to the partial denial recommended

by Magistrate Judge Majzoub in the August 19, 2009, R&R.

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II. Plaintiff’s Motion for Voluntary Dismissal

Although Magistrate Judge Majzoub identified legal grounds to dismiss defendants

Bergh and Halliday with prejudice, Plaintiff retains the ability to dismiss those defendants

without prejudice at this stage of the proceeding. Rule 41(a)(1) of the Federal Rules of

Civil Procedure allows voluntary dismissal by a plaintiff without a court order “before the

opposing party serves either an answer or a motion for summary judgement.” Rather than

file an answer or motion for summary judgment, the defendants at issue in the present

motions chose to file motions to dismiss. Therefore Plaintiff is entitled to dismiss,

without prejudice, defendants Armstrong, Morgal, Washington, Bergh, and Halliday.1

See Fed. R. Civ. P. 41(a)(1)(B) (indicating that dismissal, in cases like this, is without

prejudice). Given those dismissals, only Whipple and Caruso remain as moving

defendants in the present motions. Therefore Plaintiff’s remaining objections are relevant

only to the second R&R and, more specifically, only to the recommended dismissals of

defendants Whipple and Caruso. 

III. Objections to the Dismissal of Whipple and Caruso

Plaintiff presents four objections to Magistrate Judge Majzoub’s second R&R

recommending dismissal of defendants Whipple and Caruso. First, Plaintiff argues that

the R&R incorrectly concludes that he failed to exhaust his administrative remedies as to

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Plaintiff does not object to the dismissal of Caruso on this basis.

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Defendant Whipple. Second, Plaintiff asserts that Magistrate Judge Majzoub issued the

R&R prematurely. Third, Plaintiff objects to Magistrate Judge Majzoub’s conclusion that

he failed to state a claim pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure. Fourth, Plaintiff contends that Magistrate Judge Majzoub improperly denied

him the opportunity to conduct discovery before recommending that the motions be

granted. Each objection will be addressed in turn. 

A. Failure to Exhaust Remedies

In the R&R, Magistrate Judge Majzoub recommends that the Court grant the

Motion to Dismiss by defendants Bergh, Armstrong, Whipple, Caruso, Washington, and

Morgal on grounds that Plaintiff failed to exhaust his administrative remedies as required

by 42 U.S.C. § 1997e(a). Plaintiff objects to the recommended dismissal of Defendant

Whipple on this basis.2

 Plaintiff asserts that he told Whipple of his need for medical

treatment, but Whipple refused to get involved. Plaintiff further asserts that he

complained of Whipple’s conduct in his grievance and thereby exhausted his

administrative remedies.

In this case, Plaintiff filed a single grievance “against RUO Baldwin” on August

14, 2008. (Mot. to Dismiss Ex. B.) That grievance states that Plaintiff attempted to

resolve his issue with Baldwin by speaking to Whipple on July 28, 2008. Specifically,

Plaintiff wrote, “I finally located Sergeant Whipple about 14:30 hrs. I explained the

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Baldwin was served on September 9, 2009.

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situation, and how she [Baldwin] refused my request for the name of the person to whom

she spoke (who refused me medical treatment). The Sergeant suggested that I ‘Kite’

Health Services.” (Id.) Plaintiff went on to explain that he followed through with

Whipple’s suggestion. There is no further discussion of Whipple’s involvement and all of

Plaintiff’s complaints and requests for relief in the grievance are directed at Baldwin. 

The Court agrees with the R&R. Even if Plaintiff communicated to Whipple his

need for medical attention and frustration concerning Baldwin, he failed to exhaust his

administrative remedies as to Whipple. The references to Whipple in Plaintiff’s

grievance fail to suggest wrongdoing and therefore fail to put prison officials on notice of

a claim against Whipple. Furthermore, the administrative responses throughout the threestep grievance process consistently construed Plaintiff’s complaints as against Baldwin

only, and Plaintiff’s replies never suggested otherwise. (Id.) Therefore the Court agrees

with Magistrate Judge Majzoub’s conclusion that Plaintiff failed to exhaust his

administrative remedies against Whipple.

B. Objection to the R&R as Premature

In his second objection, Plaintiff complains that Magistrate Judge Majzoub

prematurely issued her R&R because three defendants—Baldwin, Robinson, and John

Doe—had not been served at the time Magistrate Judge Majzoub issued her R&R.3

 The

status of these three defendants, however, has no bearing on the motions presently before

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the Court. The R&R relates only to those defendants who joined in the motions to

dismiss. Plaintiff’s claims against defendants Baldwin, Robinson, and John Doe are not

addressed in Magistrate Judge Majzoub’s R&Rs and will not be affected by this Court’s

acceptance thereof. Therefore Plaintiff’s second objection lacks merit.

C. Failure to State a Claim

Plaintiff next objects to Magistrate Judge Majzoub’s conclusion that he failed to

state a claim. The motions to dismiss in this case were brought pursuant to Rule 12(b)(6)

of the Federal Rules of Civil Procedure for “failure to state a claim upon which relief can

be granted.” Focusing on the first part of that phrase, Plaintiff argues that he properly

alleged all the elements of an Eighth Amendment claim, making the R&R’s dismissal

recommendation improper. 

As explained in the R&R, a prisoner must complete all levels of the grievance

process before filing an action in federal court, and proper exhaustion is mandatory. 

Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999); Jones v. Bock, 549 U.S. 199, 211

(2007). Magistrate Judge Majzoub’s conclusion that Plaintiff failed to state a claim upon

which relief can be granted is based on the fact that Plaintiff is barred from obtaining

relief in federal court until he exhausts his administrative remedies; the R&R does not

suggest or conclude that Plaintiff failed to state an Eighth Amendment claim. Since

Plaintiff failed to satisfy the exhaustion requirement as to the moving defendants, the

Court cannot grant him relief even if his allegations are true. Therefore the R&R

appropriately recommends that the moving defendants be dismissed.

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D. Discovery

Finally, Plaintiff objects to Magistrate Judge Majzoub’s R&R because it

recommends dismissal before allowing Plaintiff to conduct discovery. Plaintiff confuses

a motion to dismiss with a motion for summary judgment. While these motions may

seem similar, there are important differences. As it relates to Plaintiff’s objection, one

notable difference is that “[a] motion to dismiss typically occurs early in the course of

litigation, well before discovery has been completed,” while “a motion for summary

judgment may not be granted until a plaintiff has had an opportunity for discovery.” 

Tucker v. Union of Needletrades, Indus. & Textile Employees, 407 F.3d 784, 787-88 (6th

Cir. 2005). Indeed, “[t]he very purpose of [a Rule 12(b)(6) Motion to Dismiss] is to

enable defendants to challenge the legal sufficiency of complaints without subjecting

themselves to discovery.” Yuhasz v. Brush Wellman, Inc., 341 F.3d 559, 566 (6th Cir.

2003) (internal quotation omitted).

Plaintiff is correct that on a motion to dismiss the “issue is not whether a plaintiff

will ultimately prevail but whether the claimant is entitled to offer evidence to support the

claims.” (Pl.’s Obj.s at 8 (quoting Cole v. U.S. Capital, 389 F.3d 719, 724 (7th Cir.

2004).) In this case, however, Plaintiff is not entitled to offer evidence to support his

claims because he failed to exhaust his administrative remedies against the moving

defendants as required by 42 U.S.C. § 1997e(a). Discovery will not change the fact that

Plaintiff failed to exhaust his administrative remedies. Therefore, discovery is

inappropriate in this case. 

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III. Conclusion

Plaintiff’s Objections to the R&R lack merit. Plaintiff failed to exhaust his

administrative remedies as to Whipple; the present motions do not affect Plaintiff’s

claims against Baldwin, Robinson, or John Doe; Plaintiff failed to state a claim upon

which relief can be granted; and discovery into the merits of the case against Whipple and

Caruso is unnecessary. Additionally, the Court notes that Plaintiff failed to provide any

specific objections regarding the dismissal of Caruso. Although Plaintiff did not move

for the voluntary dismissal of Caruso, the Court can discern no reason to deny the motion

to dismiss as to this defendant. 

Accordingly, 

IT IS ORDERED that Plaintiff’s motion for voluntary dismissal as to Armstrong,

Morgal, Washington, Bergh, and Halliday is GRANTED; Armstrong, Morgal

Washington, Bergh, and Halliday are therefore DISMISSED WITHOUT PREJUDICE.

IT IS FURTHER ORDERED that the motion to dismiss by defendants Whipple

and Caruso based on Plaintiff’s failure to exhaust his administrative remedies is

GRANTED; Whipple and Caruso are therefore DISMISSED WITHOUT

PREJUDICE.

s/PATRICK J. DUGGAN

UNITED STATES DISTRICT JUDGE

Copies To:

Robert Siler, #374576 

G. Robert Cotton Correctional Facility 

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3500 N. Elm Road 

Jackson, MI 49201 

Allen J. Soros, Esq.

John G. Fedynsky, Esq.

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