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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JASEN SMITH, 

Plaintiff, CIVIL ACTION NO. 08-14118

v. DISTRICT JUDGE DAVID M. LAWSON

BILL CATINELLA, SAL AHMED, MAGISTRATE JUDGE VIRGINIA M. MORGAN

SHERRY BURT, WILL RILEY,

C. BRADSHAW, YONKIE, and

PRINCE,

Defendants.

________________________________/

REPORT AND RECOMMENDATION

I. Introduction

This is a pro se 42 U.S.C. § 1983 action in which the plaintiff, an inmate in the custody

of the Michigan Department of Corrections (MDOC), alleges that the defendants deprived

plaintiff of his rights to access the courts and to due process under the United States

Constitution. The matter comes before the court on defendants’ Motion for Summary Judgment

(D/E #31). Plaintiff filed a Response in opposition to defendants’ motion for summary judgment

(D/E #36). For the reasons discussed below, this court recommends that defendants’ motion be

GRANTED, that the claims against defendants Burt, Riley, Bradshaw, Yonkie and Prince be

dismissed without prejudice due to plaintiff’s failure to exhaust his administrative remedies prior

to filing suit, and that defendants Catinella and Ahmed be granted summary judgment with

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respect to the claims against them. This court also recommends that, if plaintiff is deemed to

have exhausted his administrative remedies against defendants Burt, Riley and Bradshaw, those

defendants should be granted summary judgment due to their lack of personal involvement.

II. Background

On September 25, 2008, plaintiff filed a complaint against defendants Cantinella, Ahmed,

Burt, Riley, and Bradshaw (D/E #1). In that complaint, plaintiff alleges that, on April 30, 2008,

he mailed to Judge Philip E. Rodgers, Jr. of the Grand Traverse County, Michigan circuit court a

“Motion Pursuant to MCR 2.110-112 Third Party Injured” as part of his attempt to place a lien

on the property of Judge Rodgers, plaintiff’s sentencing judge, using the provisions of the

Uniform Commercial Code (UCC). Plaintiff also alleges, after Judge Rodgers failed to respond,

plaintiff sent him more a “Notice of Default and Opportunity to Cure” and the “Affidavit of the

Notice of Default.” Plaintiff further alleges that, rather than responding to the mailings, Judge

Rodgers contacted defendant Catinella, a field supervisor at the Department of Corrections,

requesting that plaintiff be prohibited from sending him any correspondence. According to

plaintiff, defendant Catinella contacted defendant Ahmed and, on June 19, 2008, defendant Sal

Ahmed sent Smith a notice of intent to conduct an administrative hearing. Plaintiff also alleges

that the hearing was conducted by Assistant Resident Unit Manager (ARUS) Halsey on June 30,

2008 and that ARUS Halsey prohibited plaintiff from sending any more mail to Judge Rodgers. 

According to plaintiff, under the relevant policy, ARUS Halsey was not the proper person to

conduct the hearing and that the administrative hearing had to be conducted by a hearing officer

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“To determine whether to grant a preliminary injunction, a district court must consider:

‘(1) the plaintiff’s likelihood of success on the merits; (2) whether the plaintiff may suffer

irreparable harm absent the injunction; (3) whether granting the injunction will cause substantial

harm to others; and (4) the impact of an injunction upon the public interest.’” Abney v. Amgen,

Inc., 443 F.3d 540, 546 -547 (6th Cir. 2006) (quoting Deja Vu of Nashville, Inc. v. Metro. Gov’t

of Nashville & Davidson County, 274 F.3d 377, 400 (6th Cir. 2001). However, none of the

factors are a prerequisite to relief and the court should balance them. Abney, 443 F.3d at 547.

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from the Department of Hearings and Appeals Division or the Hearings Officer who conducts

major misconduct reports in the administrative building. 

On that same day, plaintiff also filed a motion for preliminary injunction, in which he

requested an injunction ordering defendants to refrain from interfering with plaintiff’s state

litigation (D/E #3). This court subsequently recommended that the motion for preliminary

injunction be denied on the basis that the relevant factors1

 all weighed against plaintiff (D/E

#21). Plaintiff objected to that report and recommendation (D/E #38), but that objection was

overruled, and this court’s report and recommendation adopted, by order of the Honorable David

M. Lawson on August 31, 2009 (D/E #43).

On November 10, 2008, plaintiff filed a motion to amend his complaint (D/E #8). This

court subsequently granted that motion (D/E #16) and plaintiff filed his amended complaint on

January 12, 2009 (D/E #20). In that amended complaint, plaintiff first repeats the claims found

in his original complaint. Plaintiff then adds two prison librarians as defendants. One of them,

defendant Yonkie, allegedly refused to copy provisions of the UCC for the plaintiff and stated

that she would have to confiscate the UCC documents from the inmate if she discovered that he

had them. The other new defendant, defendant Prince, allegedly removed from the library shelf

Title 22, sections 611-612 of the United States Code. 

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On March 9, 2009, defendants filed the motion for summary judgment pending before the

court (D/E #31). In that motion, defendants argue that defendants Burt, Riley, Bradshaw,

Yonkie and Prince are entitled to dismissal based on lack of exhaustion. Defendants also argue

that defendants Bradshaw, Riley and Burt are entitled to summary judgment based on the

absence of facts demonstrating their personal involvement in the alleged constitutional violation. 

Defendants further argue that defendants Catinella and Ahmed are entitled to summary judgment

based on the absence of a genuine issue of material fact and immunity.

On March 24, 2009, plaintiff filed a response to defendants’ motion for summary

judgment (D/E #36). In that response, plaintiff argues that the exhaustion requirement is 

waiveable and that the MDOC waived it in this case by deciding plaintiff’s grievances on their

merits after this case was filed. Plaintiff also argues that defendants’ actions have barred

plaintiff from collaterally attacking his conviction. 

III. Standard of Review

Defendants move for summary judgment pursuant to Fed. R. Civ. P. 56(b). Fed. R. Civ.

P. 56(b) provides that “[a] party against whom a claim, counterclaim, or cross-claim is asserted

or a declaratory judgment is sought may, at any time, move without or without supporting

affidavits for a summary judgment in the party’s favor as to all or any part thereof.” Summary

judgment is appropriate where “the pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.

Civ. P.56(c).

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In deciding a motion for summary judgment, the court must view the evidence and draw

all reasonable inferences in favor of the non-movant. See Matsushita Electric Industrial Co.,

Ltd. et al. v. Zenith Radio Corp., et. al., 475 U.S. 547, 587, 106 S.Ct. 1348, 1356 (1986); see also

B.F. Goodrich Co. v. U.S. Filter Corp., 245 F.3d 587, 591-92 (6th Cir. 2001). The moving party

bears the initial burden of demonstrating the absence of a genuine issue of material fact. Once

the moving party has carried his burden, the party opposing the motion “must come forward with

specific facts showing that there is a genuine issue for trial.” Matsushita, 475 U.S. at 587, 106

S.Ct. 1348. The opposing party cannot merely rest upon the allegations contained in his

pleadings. Rather, he must submit evidence demonstrating that material issues of fact exist. 

Banks v. Wolfe County Bd. of Educ., 330 F.3d 888, 892 (6th Cir. 2003); Fed. R. Civ. P. 56(e). 

“Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587, 106 S.Ct. 1348

(quoting First National Bank of Arizona v. Cities Service Co., 391 U.S. 253, 289, 88 S.Ct. 1575,

1592 (1968)).

IV. Discussion

A. Exhaustion of Administrative Remedies

Defendants Burt, Riley, Bradshaw, Yonkie and Prince argue that they are entitled to

dismissal based on the lack of exhaustion of administrative remedies. Pursuant to the Prison

Litigation Reform Act of 1995 (PLRA), 110 Stat. 1321-71, as amended 42 U.S.C. §§ 1997e et

seq., “[n]o action shall be brought with respect to prison conditions under section 1983 of this

title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional

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facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). 

Accordingly, exhaustion of available administrative remedies is mandatory in order for prisoners

to bring a claim in federal court. Jones v. Bock, __ U.S. __, __, 127 S.Ct. 910, 914, 166 L.Ed.2d

798 (2007); Woodford v. Ngo, __ U.S. __, __, 126 S.Ct. 2378, 2383, 165 L.Ed.2d 368 (2006). 

Not only must the prisoner exhaust all available remedies but such exhaustion must be proper,

including “compliance with an agency’s deadlines and other critical procedural rules.” 

Woodford, 126 S.Ct. at 2386 (holding that an inmate’s exhaustion must be in compliance with

applicable grievance procedures, specifically deadlines, because “no adjudicative system can

function effectively without imposing some orderly structure on the course of its proceedings”).

In this case, the administrative procedure applicable to the plaintiff’s claims are set forth

in MDOC PD 03.02.130, “Prisoner/Parolee Grievances” (effective date July 9, 2007). (MDOC

PD 03.02.130, attached as Exhibit E to Defendants’ Motion for Summary Judgment) Pursuant to

that policy directive, the MDOC grievance process consists of three steps: a Step I grievance

filing setting forth the issue being grieved and identifying the persons involved in the issue after

an unsuccessful attempt at a verbal resolution. If the inmate is dissatisfied with the Step I

response to his grievance, he may file a Step II appeal; which is followed by a Step III grievance

appeal in the event he is dissatisfied with the Step II grievance response. 

All grievances pursued through all three steps of the MDOC grievance process are

recorded and logged in a computerized grievance tracking system. (MDOC PD 03.02.130, ¶

GG, attached as Exhibit E to Defendants’ Motion for Summary Judgment) The grievance

inquiry for plaintiff, provided by defendants, demonstrates that plaintiff only completed the

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grievance process with respect to one grievance prior to filing this lawsuit: SMT 08-07-00738-

28c. (Grievance Inquiry, attached as Exhibit D to Defendants’ Motion for Summary Judgment) 

In Grievance SMT 08-07-00738-28c, plaintiff alleged that defendants Catinella and Ahmed

denied him his constitutional rights by stopping his correspondence to his sentencing judge. 

(Grievance SMT 08-07-00738-28c, attached as Exhibit C to Defendants’ Motion for Summary

Judgment) Plaintiff also alleged in that grievance that the hearing involving the correspondence

was improperly conducted by ARUS Robert Halsey. (Grievance SMT 08-07-00738-28c,

attached as Exhibit C to Defendants’ Motion for Summary Judgment) 

As discussed above, the United States Supreme Court expressly held in Woodford that an

inmate’s exhaustion must be in compliance with applicable grievance procedures, specifically

deadlines, because “no adjudicative system can function effectively without imposing some

orderly structure on the course of its proceedings.” Woodford, 126 S.Ct. at 2386. Here, plaintiff

failed to comply with the applicable grievance procedures with respect to defendants Burt, Riley,

Bradshaw, Yonkie and Prince because he failed to exhaust any grievances against them through

all three stages of the MDOC grievance process prior to filing this lawsuit. Therefore,

defendants Burt, Riley, Bradshaw, Yonkie and Prince are entitled to dismissal without prejudice

on the claims against them. 

Plaintiff correctly asserts in his response that § 1997e does not impose a jurisdictional bar

to federal jurisdiction, Curry v. Scott, 249 F.3d 493, 501 -503 (6th Cir. 2001), and that, while the

preferred practice is for inmates to complete the grievance process prior to the filing of an action,

“because the exhaustion requirement is not jurisdictional, district courts have some discretion in

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determining compliance with the statute.” Wyatt v. Leonard, 193 F.3d 876, 879 (6th Cir. 1999). 

However, the cases cites to by plaintiff do not support his argument and the court should not

excuse his failure to exhaust. For example, in Perez v. Wisconsin Dept. of Corrections, 182 F.3d

532, 536 (7th Cir. 1999), the Seventh Circuit actually rebuked the district court for denying a

case on the merits even though the exhaustion requirement was successfully raised, while in

Horton v. Potter, 369 F.3d 906, 911-912 (6th Cir. 2004), the defendants failed to raise their

argument timely. Moreover, in Spruill v. Gillis, 372 F.3d 218, 234-235 (3rd Cir. 2004) and

Gates v. Cook, 376 F.3d 323, 331 (5th Cir. 2004), the exhaustion requirement was deemed

satisfied, despite defects in the grievances, because the prisons in those cases decided those

grievances on the merits prior to the case be filed.

Here, plaintiff argues that he completed the MDOC grievance process with respect to his

claims against defendants Burt, Riley, Bradshaw, Yonkie, and Prince after he filed he complaint. 

However, § 1997e(a) requires the prisoner to exhaust his administrative remedies prior to filing

suit and, therefore, he cannot exhaust these remedies during the pendency of the action. See

Freeman v. Francis, 196 F.3d 641, 645 (6th Cir. 1999). Therefore, the claims against defendants

Burt, Riley, Bradshaw, Yonkie, and Prince should be dismissed without prejudice. 

B. Qualified Immunity

Defendants Catinella, Ahmed, Burt, Riley, and Bradshaw also raise the issue of qualified

immunity in their motion for summary judgment. Qualified immunity is “an entitlement not to

stand trial or face the other burdens of litigation.” Saucier v. Katz, 533 U.S. 194, 200; 121 S.Ct.

2151; 150 L.Ed.2d 272 (2001) overruled in part by Pearson v. Callahan, --- U.S. ----, 129 S.Ct.

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808, 172 L.Ed.2d 565 (2009), (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806,

86 L.Ed.2d 411 (1985)). The privilege is an immunity from suit and not a mere defense to

liability. Saucier, 533 U.S. at 200. As a result, courts have “repeatedly have stressed the

importance of resolving immunity questions at the earliest possible stage in litigation.” Hunter

v. Bryant, 502 U.S. 224, 227, 112 S.Ct. 534, 116 L.Ed.2d 589 (1991) (per curiam).

“A court should not grant summary judgment on the issue of qualified immunity if there

exists a genuine issue of material fact, ‘involving an issue on which the question of immunity

turns, such that it cannot be determined before trial whether the defendant did acts that violate

clearly established rights.’” Flint ex rel. Flint v. Kentucky Dept. of Corrections, 270 F.3d 340,

346-347 (6th Cir. 2001) quoting Poe v. Haydon, 853 F.2d 418, 425-426 (6th Cir. 1988). A court

required to rule upon the qualified immunity issue must consider whether the facts alleged show

the officer’s conduct violated a constitutional right and whether that constitutional right was

clearly established. Saucier, 533 U.S. at 201. In making those inquiries, courts are “permitted to

exercise their sound discretion in deciding which of the two prongs of the qualified immunity

analysis should be addressed first in light of the circumstances in the particular case at hand.” 

Pearson, 129 S.Ct. at 818. “This inquiry, it is vital to note, must be undertaken in light of the

specific context of the case, not as a broad general proposition; and it too serves to advance

understanding of the law and to allow officers to avoid the burden of trial if qualified immunity

is applicable.” Saucier, 533 U.S. at 201. 

1. Burt, Riley, and Bradshaw

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Defendants Burt, Riley, and Bradshaw argue that they are entitled to qualified immunity

and summary judgment because they were not personally involved in the alleged constitutional

violation. To succeed in an action under § 1983, a plaintiff must show personal involvement by

the defendant in the constitutional violation. Copeland v. Machulis, 57 F.3d 476, 481 (6th Cir.

1995) (per curiam). Moreover, a respondeat superior theory of liability, based on the right to

control employees, is not cognizable under 42 U.S.C. § 1983. See Turner v. City of Taylor, 412

F.3d 629, 649 (6th Cir. 2005); Hays v. Jefferson County, Ky., 668 F.2d 869, 874 (6th Cir. 1982). 

“Thus, a supervisory official’s failure to supervise, control or train the offending individual is not

actionable unless the supervisor either encouraged the specific incident of misconduct or in some

other way directly participated in it. At a minimum a plaintiff must show that the official at least

implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct of the

offending officers.” Shehee v. Luttrell, 199 F.3d 295, 300 (6th Cir. 1999) (citations omitted). 

Moreover, the Sixth Circuit held in Shehee that a denial of an administrative grievance and the

failure to remedy the alleged constitutional violation did not constitute sufficient involvement to

establish liability under 42 U.S.C. § 1983. Shehee, 199 F.3d at 300. 

Here, plaintiff’s complaint does not name defendants Burt, Riley, or Bradshaw in any of

the allegations and those defendants appear to have been involved in the mail prohibition or

hearing at issue in this case. In his response, plaintiff neither identifies any personal involvement

nor provides any evidentiary support suggesting personal involvement by Burt, Riley, or

Bradshaw. Those three defendants all hold supervisory positions within the MDOC, but, as

discussed above, a respondeat superior theory of liability, based on the right to control

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employees, is not cognizable under 42 U.S.C. § 1983. See Turner, 412 F.3d at 649; Hays, 668

F.2d at 874.

2. Catinella and Ahmed

Defendants Catinella and Ahmed argue that they are entitled to qualified immunity and

summary judgment with respect to the claims against them because no genuine issue of material

fact is in dispute and they are entitled to judgment as a matter of law. Inmates have a

constitutionally protected right of access to the courts. See Bounds v. Smith, 430 U.S. 817, 828,

97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). However, the right of access to the courts is not

unrestricted and does not mean that an inmate must be afforded unlimited litigation resources. 

See Lewis v. Casey, 518 U.S. 343, 352-55, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). There is no

generalized “right to litigate” which is protected by the First Amendment and “a prisoner’s right

to access the courts extends to direct appeals, habeas corpus applications, and civil rights claims

only.” Thaddeus-X v. Blatter, 175 F.3d 378, 391 (6th Cir. 1999). Moreover, an inmate claiming

that he was denied access to the courts must show that he suffered an actual litigation-related

injury or legal prejudice because of the actions of the defendants. Lewis, 518 U.S. at 349-51;

Boswell v. Mayer, 169 F.3d 384, 387 (6th Cir. 1999); Pilgrim v. Littlefield, 92 F.3d 413, 416

(6th Cir.1996). Thus, not every infringement or inconvenience suffered by the litigating prisoner

implicates this constitutional right. As stated in Lewis: 

The requirement that an inmate alleging a violation of Bounds

must show actual injury derives ultimately from the doctrine of

standing, a constitutional principle that prevents courts of law from

undertaking tasks assigned to the political branches. It is the role

of courts to provide relief to claimants, in individual or class

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actions, who have suffered, or will imminently suffer, actual harm;

it is not the role of courts, but that of the political branches, to

shape the institutions of government in such fashion as to comply

with the laws and the Constitution. In the context of the present

case: It is for the courts to remedy past or imminent official

interference with individual inmates' presentation of claims to the

courts; it is for the political branches of the State and Federal

Governments to manage prisons in such fashion that official

interference with the presentation of claims will not occur. Of

course, the two roles briefly and partially coincide when a court, in

granting relief against actual harm that has been suffered, or that

will imminently be suffered, by a particular individual or class of

individuals, orders the alteration of an institutional organization or

procedure that causes the harm. But the distinction between the

two roles would be obliterated if, to invoke intervention of the

courts, no actual or imminent harm were needed, but merely the

status of being subject to a governmental institution that was not

organized or managed properly. If-to take another example from

prison life-a healthy inmate who had suffered no deprivation of

needed medical treatment were able to claim violation of his

constitutional right to medical care, simply on the ground that the

prison medical facilities were inadequate, the essential distinction

between judge and executive would have disappeared: it would

have become the function of the courts to assure adequate medical

care in prisons. 

Lewis, 518 U.S. at 349-350 (citations omitted).

In this case, plaintiff asserts that defendants Catinella and Ahmed interfered with

plaintiff’s access to courts with respect to plaintiff’s attempt to file a lien against the judge in his

criminal case by using provisions of the Uniform Commercial Code (UCC) that define the rights

and obligations of debtors and creditors. However, because “a prisoner’s right to access the

courts extends to direct appeals, habeas corpus applications, and civil rights claims only,”

Thaddeus-X v. Blatter, 175 F.3d at 391, defendants Cantinella and Ahmed are clearly entitled to

summary judgment on all of plaintiff’s denial of access to the courts claims. Plaintiff may have

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listed his criminal case number as an item in dispute as part of his attempted UCC lien and Judge

Rodgers may have played a role at plaintiff’s criminal trial, but the attempted lien is not a part of

plaintiff’s criminal case and it is clearly not a collateral attack on his conviction or sentence.

Moreover, defendants Catinella and Ahmed are also entitled to summary judgment on

plaintiff’s claims because plaintiff has failed to demonstrate that a genuine issue of material fact

exists with respect to whether he suffered an actual litigation-related injury or legal prejudice

because of the actions of the defendants. An inmate claiming that he was denied access to the

courts must show that he suffered an actual litigation-related injury or legal prejudice because of

the actions of the defendants, Lewis, 518 U.S. at 349-51. Plaintiff, at times, asserts that he

suffered legal prejudice, but he fails to describe any such prejudice or provide any evidence

supporting his allegations. Defendants did not produce any evidence either on this issue, but,

because defendants do not bear the ultimate burden of persuasion on the causation issue,

defendants need only point out the lack of a genuine issue regarding injury. See Calderone v.

United States, 799 F.2d 254, 259 (6th Cir. 1986) (“[w]hen the moving party does not have the

burden of proof on the issue, he need show only that the opponent cannot sustain his burden at

trial.”). As the Supreme Court has explained,

regardless of whether the moving party accompanies its summary

judgment motion with affidavits, the motion may, and should, be

granted so long as whatever is before the district court

demonstrates that the standard for the entry of summary judgment,

as set forth in Rule 56(c) is satisfied.

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986).

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Defendants have pointed out the absence of a genuine factual issue on the material

element of injury and plaintiff has failed to respond with any evidence. This court therefore

finds that, even if plaintiff’s attempted lien is within the scope of his right to access the court,

defendants Catinella and Ahmed would be entitled to summary judgment on plaintiff’s denial of

access to the courts claims.

C. Eleventh Amendment Immunity

Defendants Catinella and Ahmed also argue that they are entitled to summary judgment

with respect to the claims against them in their official capacity due immunity under the

Eleventh Amendment to the United States Constitution. The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed to

extend to any suit in law or equity, commenced or prosecuted

against one of the United States by Citizens of another state, or by

Citizens or subjects of any foreign State. 

U.S. Const. amend. XI. 

In general, the Eleventh Amendment immunizes state officials from suit in federal court. 

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101, 104 S.Ct. 900, 79 L.Ed.2d 67

(1984). The Supreme Court, however, recognized an important exception to this general rule in

Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), where it held that the

Eleventh Amendment does not bar a lawsuit seeking an injunction against a state official

prohibiting the state official from enforcing a state statute that allegedly violates the United

States Constitution. “In determining whether the doctrine of Ex parte Young avoids an Eleventh

Amendment bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the]

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complaint alleges an ongoing violation of federal law and seeks relief properly characterized as

prospective.’” Verizon Maryland, Inc. v. Public Service Commission of Maryland, 535 U.S.

635, 645, 122 S.Ct. 1753, 152 L.Ed.2d 871 (2002) (quoting Justice O’Connor’s concurring

opinion in Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296, 117 S.Ct. 2028, 138

L.Ed.2d 438 (1997)).

In this case, plaintiff’s amended complaint is unclear as to what relief he seeks. To the

extent that plaintiffs sue defendants for money damages in their official capacities, the claims are

properly dismissed as barred by the Eleventh Amendment. See Will v. Mich. Dept. Of State

Police, 491 U.S. 58, 64, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). 

V. Conclusion

For the reasons discussed above, the court recommends that defendants’ motion be

GRANTED, that the claims against defendants Burt, Riley, Bradshaw, Yonkie and Prince be

dismissed without prejudice due to plaintiff’s failure to exhaust his administrative remedies prior

to filing suit, and that defendants Catinella and Ahmed be granted summary judgment with

respect to the claims against them. This court also recommends that, if plaintiff is deemed to

have exhausted his administrative remedies against defendants Burt, Riley and Bradshaw, those

defendants should be granted summary judgment due to their lack of personal involvement.

The parties to this action may object to and seek review of this Report and

Recommendation, but are required to act within ten (10) days of service of a copy hereof as

provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific

objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140

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(1985); Howard v. Secretary of HHS, 932 F.2d 505, 508 (6th Cir. 1991); United States v.

Walters, 638 F.2d 947, 949-50 (6th Cir. 1981). The filing of objections which raise some issues,

but fail to raise others with specificity, will not preserve all the objections a party might have to

this Report and Recommendation. Willis v. Secretary of HHS, 931 F.2d 390, 401 (6th Cir.

1991); Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987). 

Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this

magistrate judge.

Within ten (10) days of service of any objecting party’s timely filed objections, the

opposing party may file a response. The response shall be no more than 20 pages in length

unless, by motion and order, the page limit is extended by the court. The response shall address 

each issue contained within the objections specifically and in the same order raised.

s/Virginia M. Morgan 

Virginia M. Morgan

United States Magistrate Judge

Dated: September 4, 2009

 

PROOF OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and plaintiff via

the Court’s ECF System and/or U. S. Mail on September 4, 2009.

s/Jane Johnson 

Case Manager to

Magistrate Judge Virginia M. Morgan

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