Neal v. Pelkey

Full title: CORDALL NEAL, Plaintiff, v. KEITH PELKEY, Defendant.

Court: United States District Court, W.D. Michigan, Southern Division

Date published: Apr 19, 2024

1:23-CV-895 (W.D. Mich. Apr. 19, 2024)

Opinion

1:23-CV-895

04-19-2024

CORDALL NEAL, Plaintiff, v. KEITH PELKEY, Defendant.

ROBERT J. JONKER UNITED STATES DISTRICT JUDGE.

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION

ROBERT J. JONKER UNITED STATES DISTRICT JUDGE.

The Court has reviewed Magistrate Judge Berens' Report and Recommendation (ECF No. 32) and Plaintiff's Objection to the Report and Recommendation (ECF No. 33). Under the Federal Rules of Civil Procedure, where, as here, a party has objected to portions of a Report and Recommendation, “[t]he district judge . . . has a duty to reject the magistrate judge's recommendation unless, on de novo reconsideration, he or she finds it justified.” 12 WRIGHT, MILLER, & MARCUS, FEDERAL PRACTICE AND PROCEDURE § 3070.2, at 381 (2d ed. 1997). Specifically, the Rules provide that:

The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.

FED R. CIV. P. 72(b)(3). De novo review in these circumstances requires at least a review of the evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981). The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge; the Report and Recommendation itself; and Plaintiff's objections. After its review, the Court finds the Magistrate Judge's Report and Recommendation is factually sound and legally correct.

The Magistrate Judge recommends granting Defendant's Motion and Corrected Motion for Summary Judgment (ECF Nos. 21 and 26). In his objections, Plaintiff primarily reiterates and expands upon arguments already considered by the Magistrate Judge. The Magistrate Judge properly analyzed Plaintiff's claims. Nothing in Plaintiff's Objections changes the fundamental analysis. The Court agrees that the defense motions should be granted for the very reasons articulated by the Magistrate Judge.

ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the Magistrate Judge (ECF No. 32) is APPROVED AND ADOPTED as the opinion of the Court.

IT IS FURTHER ORDERED that Defendant's Motion and Corrected Motion for Summary Judgment (ECF Nos. 21 and 26) are GRANTED.

IT IS FURTHER ORDERED that Plaintiff's unexhausted retaliation claim is DISMISSED WITHOUT PREJUDICE.

The Court discerns no good-faith basis for appeal of this matter. See McGore v Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997); 28 U.S.C. § 1915(a)(3).

This case is CLOSED. A separate Judgment shall issue.