Delaney #671563 v. Schroeder et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
BRASHARD D ELANEY , #671563, 	)
Plaintiff, 	)
) 	No. 2:25-cv-75
-v- 	)
) 	Honorable Paul L. Maloney
SARAH SCHROEDER,
et al., 	)
Defendants. 	)
)
ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff Delany, a prisoner under the control of the Michigan Department of
Corrections, alleges the defendants violated his civil rights. Plaintiff filed this lawsuit without
the assistance of counsel. The only two claims remain in this lawsuit, both against Defendant
Zampese. Plaintiff has claims against Defendant in his individual capacity for retaliation and
for interference with mail.
On January 9, 2026, Defendant filed a motion to dismiss for failure to exhaust
administrative remedies. ECF No. 38. Defendant argues that it was not possible for Plaintiff
to exhaust his administrative remedies. The events on which the claims are based occurred
on March 18, 2025 (filed a kite complaining about Defendant) and on March 25 (Defendant
intentionally distributed Plaintiff’s mail to other prisoners). Plaintiff filed this lawsuit on April
22, 2025, before he could have exhausted the grievance process. 	Defendant asserted he
could rely on Rule 12 rather than Rule 56 for the motion because the complaint includes all
of the facts necessary for him to raise the affirmative defense. 	Plaintiff did not file any
response.
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On March 2, 2026, the Magistrate Judge issued a report recommending the court
grant Defendant’s motion.
On March 3, 2026, the clerk entered Plaintiff’s response to Defendant’s motion on
the docket. 	ECF No. 43. 	The date stamp on the envelope indicates Plaintiff mailed the
response on February 24. PageID.221.
To date, the clerk has not docketed any objections to the report issued by the
Magistrate Judge.
1. 	Plaintiff did not timely file his response to Defendant’s motion to dismiss. 	The
local rules require responses be filed within 28 days. Plaintiff mailed his response more than
two weeks after the 28-day deadline.
2. 	Plaintiff has not timely filed any objection to the Magistrate Judge’s report. 	By
statute and by rule, a party has 14 days to respond to report issued by a magistrate judge.
The report issued more than eight weeks ago.
3. Even if the court were to consider Plaintiff’s response as an objection to the report
and recommendation, it would not alter the outcome. Plaintiff does not dispute the timeline
of events. While he might have fully exhausted the grievance process at a later date, he did
not obtain a Step III response before filing this lawsuit. Plaintiff has not demonstrated any
error of fact or law.
4. 	The affidavit Plaintiff submitted with his response cannot be considered.
Defendant filed pleadings-based motion, not a motion for summary judgment. 	The court
can consider only the pleadings.
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5. The allegations in the affidavit do not assist Plaintiff with his claim against
Defendant Zampese. The affiant (not Plaintiff) alleges an unnamed corrections officer stated
that the officer’s brother used an app to find Plaintiff’s girlfriend and was going to write her.
The affiant does not indicate which corrections officer made this statement.
Accordingly, the court ADOPTS the report and recommendation (ECF No. 42) and
GRANTS Defendant Zampese’s motion to dismiss (ECF No. 38). IT IS SO ORDERED.
Date: 	May 1, 2026 	/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge
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