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UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

GREGORY COOK #499719,

Plaintiff, Case No. 09-10892

vs. HONORABLE DENISE PAGE HOOD

PATRICIA CARUSO, et al.,

Defendants.

_______________________________________/

ORDER ACCEPTING REPORT AND RECOMMENDATION [DOCKET NO. 40] AND

ACCEPTING REPORT AND RECOMMENDATION [DOCKET NO. 46]

This matter is before the Court on Magistrate Judge R. Steven Whalen’s Report and

Recommendation (“R&R”) [Docket No. 40, filed on December 20, 2010], and Magistrate Judge

R. Steven Whalen’s Report and Recommendation (“Second R&R”) [Docket No. 46, filed on

January 25, 2011]. Plaintiff Gregory Cook has filed timely objections to both R&Rs [Docket

No.44, filed on January 13, 2011; Docket No. 48, filed on February 10, 2011]. For the

reasons set forth below, the Court accepts both R&Rs.

I. STANDARD OF REVIEW

A. Report and Recommendation

The standard of review to be employed by the Court when examining a Report and

Recommendation is set forth in 28 U.S.C. § 636. The Court “may accept, reject or modify, in

whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. §

636(B)(1). The Court “shall make a de novo determination of those portions of the report or

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specified proposed findings or recommendations to which objection is made.” Id. 

B. Summary Judgment

Pursuant to Rule 56(c), summary judgment may only be granted in cases 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 judgment as a matter of law.” The moving party bears the burden of showing

no dispute as to any material issue. Equal Employment Opportunity Comm’n v. MacMillan

Bloedel Containers, Inc., 503 F.2d 1086, 1093 (6th Cir. 1974). A dispute must be evident from

the evidence in order to deny such a motion. Such a dispute must not merely rest upon the

allegations or denials in the pleadings, but instead must be established by affidavits or other

documentary evidence. Fed.R.Civ.P. 56(e). When ruling, the Court must consider the

admissible evidence in the light most favorable to the non-moving party. Sagan v. United States

of Am., 342 F.3d 493, 497 (6th Cir. 2003). 

C. Pro Se Standards of Review

When reviewing pro se complaints, the court must employ standards less stringent than if

the complaint had been drafted by counsel. Haines v. Kerner, 404 U.S. 519, 520 (1972). 

However, the court “need not accept as true legal conclusions or unwarranted factual

inferences.” Montgomery v. Huntington Bank, 346 F.3d 693, 698 (6th Cir. 2003)(quoting

Morgan v. Church’s Fried Chicken, 829 F.2d 10, 12 (6th Cir. 1987)). In other words, “the

lenient treatment generally afforded to pro se litigants has limits,” and pro se litigants are “not

automatically entitled to take every case to trial.” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th

Cir. 1996). 

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II. ANALYSIS

A. R&R

On June 2, 2010, Defendants Patricia Caruso and Dennis Straub filed a Motion for

Summary Judgment [Docket No. 26]. In the December 20, 2010 R&R, the Magistrate Judge

recommended granting the motion and dismissing these two defendants with prejudice. The

Magistrate Judge reasoned that Plaintiff made no factual allegations that either Caruso or Straub

was personally involved in the denial of his requests for a lower bunk, but attempts to hold them

liable under a theory of respondeat superior. The Supreme Court has held that liability cannot

be based on respondeat superior liability in an action brought under 42 U.S.C. § 1983. Plaintiff

objects to the Magistrate Judge’s finding, noting that Defendants Caruso and Straub filed

affidavits with the Court indicating no personal involvement, but he replied with copies of letters

sent to both Defendants and declarations from family members indicating they called

Defendants’ offices. The Court agrees with the Magistrate Judge that the unnotarized

declarations and letters cannot be considered as evidence on a motion for summary judgment. 

Alternatively, the Court agrees that, even if the content of Plaintiffs’ letters and declarations was

presumed to be true, they are insufficient to demonstrate that either Defendant Caruso or

Defendant Straub were personally involved in the denial of his requests for a lower bunk. 

The Magistrate Judge further recommends dismissal of Plaintiff’s equal protection claim

against these two defendants, brought under the Fourth Amendment. Plaintiff does not allege

that he was denied equal protection based on his membership in a suspect class, and fails to

demonstrate a constitutional violation. This Court agrees that Defendants’ Caruso and Straub’s

motion must be granted.

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B. Second R&R

On June 17th, 2010, the Defendants to this action brought a Motion for Summary

Judgment for Failure to Exhaust Administrative Remedies as Required by 42 U.S.C. § 1983

[Docket No. 29]. The Magistrate Judge recommended granting this motion, reasoning that

Plaintiff did not comply with administrative exhaustion requirements. Plaintiff objects, stating

that such requirements were waived, as Plaintiff’s grievances were addressed on the merits.

Plaintiff filed a grievance on August 14, 2008 in response to an incident that occurred on

March 20, 2007. The Michigan Department of Correction (MDOC) Policy Directive

03.02.130(P) states that, prior to filing a grievance, the grievant must attempt to resolve the issue

within two business days of becoming aware of a grievable issue. If the grievant is unable to

resolve the issue, the grievant may file a Step I grievance within five business days. The

Magistrate Judge correctly asserts that a grievance filed seventeen months after an alleged

incident is untimely, and fails to satisfy administrative exhaustion requirements. See, e.g.,

Woodford v. Ngo, 548 U.S. 81 (2006). 

Plaintiff argues that, although untimely, this grievance satisfies administrative exhaustion

requirements because Defendants addressed the grievance on its merits and never cited

deficiencies. However, Exhibit B to Defendant’s Motion for Summary Judgment demonstrates

that Plaintiff’s grievance was initially rejected at Steps I and ultimately rejected at Step III as

untimely. 

Plaintiff’s earlier grievance, filed on March 23, 2007, does not satisfy the administrative

exhaustion requirements for the claims he now brings before the Court. The Magistrate Judge

notes that the earlier grievance did not name present Defendants and did not set forth the

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Complaint’s theory of recovery. Rather than addressing the denial of necessary

accommodations, the March 23, 2007 grievance requested discipline for healthcare staff’s

inadequate response to his medical emergency. The Court agrees that Plaintiff’s March 23, 2007

grievance did not exhaust Plaintiff’s present claims. 

IV. CONCLUSION

For the reasons set forth above and in the R&R and the Second R&R,

IT IS ORDERED that Magistrate Judge R. Steven Whalen’s Report and

Recommendation (“R&R”) [Docket No. 40, filed on December 20, 2010] is ACCEPTED and

ADOPTED as this Court’s findings and conclusions of law. 

IT IS FURTHER ORDERED that Magistrate Judge R. Steven Whalen’s Report and

Recommendation (“Second R&R”) [Docket No. 46, filed on January 25, 2011] is ACCEPTED

and ADOPTED as this Court’s findings and conclusions of law. 

IT IS FURTHER ORDERED that Defendants Patricia Caruso and Dennis Straub are

DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that this Plaintiff’s Complaint is DISMISSED

WITHOUT PREJUDICE.

s/Denise Page Hood 

Denise Page Hood

UNITED STATES DISTRICT JUDGE

Dated: February 28, 2011

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I hereby certify that a copy of the foregoing document was mailed to Gregory Cook #499719,

Earnest C. Brooks Correctional Facility, 2500 S. Sheridan Drive, Muskegon Heights, MI 49444

and the attorneys of record on this date, February 28, 2011, by electronic and/or ordinary mail.

s/LaShawn R. Saulsberry 

Relief Case Manager, (313) 234-5165

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