Marshall #732012 v. Wonnacott et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CALVIN EUNICE MARSHALL
#732012,
Plaintiff,
v.
UNKNOWN WONNACOTT, et al.,
Defendants.
________________________________/
Case No. 2:25-cv-102
Hon. Paul L. Maloney
ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff Calvin Marshall, a prisoner in the custody of the Michigan
Department 	of 	Corrections, 	alleges 	an 	Eighth 	Amendment 	violation
against Defendants Warden James Corrigan, Unknown Deputy Warden,
Unit 	Counselor 	Unknown 	Wonnacott, 	and 	Resident 	Unit 	Manager
Unknown Spiker. 	Defendants filed a motion for summary judgment (ECF
No. 20). 	The Magistrate Judge reviewed the motion and issued a report
recommending the Court grant Defendants’ motion (ECF No. 26). Plaintiff
filed 	objections 	(ECF 	No. 	31). 	The 	Court 	will 	adopt 	the 	report 	and
recommendation 	and 	will 	grant 	Defendants’ 	motion 	for 	summary
judgment.
After being served with a report and recommendation (R&R) issued
by a magistrate judge, a party has fourteen days to file written objections
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to the proposed findings and recommendations. 	28 U.S.C. § 636(b)(1);
Fed. R. Civ. P. 72(b)(2). A district court judge reviews de novo the portions
of the R&R to which objections have been filed. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b)(3). 	Only those objections that are specific are entitled to a
de novo review under the statute. Mira v. Marshall, 806 F.2d 636, 637 (6th
Cir. 1986) (per curiam).
The Magistrate Judge recommends dismissal because of Plaintiff’s
failure to exhaust his administrative remedies as were available, which is
required by the Prison Litigation Reform Act (PLRA), 42 U.S.C. § 1997e,
when a prisoner brings a claim under § 1983. 	The Magistrate Judge
provided a succinct summary of the facts giving rise to Plaintiff's claim as
well as the three-step process that Plaintiff was required to follow to
exhaust his administrative remedies.
In response, 	Plaintiff 	does 	not 	argue 	that 	he 	pursued 	any
grievances through Step III at URF but instead argues that
prison officials prevented him from completing the grievance
process. 	(ECF No. 24, PageID.137). 	Plaintiff asserts that he
submitted a Step I grievance but did not receive a response for
more than 24 days and could not request an appeal form from
the grievance coordinator while in segregation. 	(ECF No. 24,
PageID.133, 136-37). 	But, “[i]f Plaintiff did not get a timely
response to a Step I or Step II grievance, he was still obligated
to appeal to the next step to preserve his claim.” 	Harvey v.
Jamsen, No. 23-10049, 2023 WL 9284860, at *6 (E.D. Mich.
Dec. 	19, 	2023). 	Here, 	Plaintiff 	does 	not 	argue 	that 	he
attempted 	to 	contact 	the 	grievance 	coordinator 	or 	that 	he
requested a Step II appeal but merely states that “[t]here isn’t
anyway [sic] to properly exhaust any claims against MDOC
staff” and that the grievance appeal process is a “dead end.”
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(ECF No. 24, PageID.133). 	“The Sixth Circuit requires some
affirmative 	efforts 	to 	comply 	with 	the 	administrative
procedures before analyzing whether the facility rendered these
remedies unavailable.” 	Napier v. Laurel Cnty., Ky., 636 F.3d
218, 	223 	(6th 	Cir. 	2011) 	(quotation 	marks 	and 	citation
omitted); see also Byrd v. Fed. Bureau of Prisons, No. 21-5911,
2022 WL 898772, at *2 (6th Cir. Feb. 28, 2022) (“[Plaintiff]’s
general, 	conclusory 	assertions 	. 	. 	. 	are 	not 	sufficient 	to
establish 	that 	the 	[prison 	facility] 	thwarted 	or 	made 	the
grievance process unavailable to him in particular, so as to
excuse his exhaustion requirement.”). 	Accordingly, Plaintiff
has failed to create a genuine issue of fact that the grievance
process was unavailable to him.
(R&R 4-5.)
Plaintiff objects to the Magistrate Judge’s analysis.
(Obj. 2.) The Court construes the fourth paragraph to mean that “plaintiff
still tried to send out grievance through neighbor.”
This is the first time that Plaintiff claims to have tried to send a
grievance 	through 	their 	neighbor. 	But 	Plaintiff 	failed 	to 	include 	this
information in his complaint or in his response to Defendants’ motion.
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New arguments or circumstances raised for the first time in an objection
will 	not 	be 	considered 	because 	they 	were 	never 	properly 	before 	the
Magistrate Judge. 	See Hannon v. Brintlinger, No. 2:17-CV-33, 2018 WL
1141424, at *1 (W.D. Mich. Mar. 2, 2018) (citing and quoting Murr v. United
States, 200 F.3d 895, 902 n.1 (6th Cir. 2000)). 	Therefore, Plaintiff’s
objection is without merit.
Even if the Court were to consider this new argument, Plaintiff’s mere
assertion of it is not enough to create a genuine issue of material fact.
Unsubstantiated assertions are not evidence and are not enough to defeat
a well-supported motion for summary judgment. 	Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 888 (1990).
Accordingly, 	the 	Court 	ADOPTS 	as 	its 	opinion 	the 	Report 	and
Recommendation (ECF No. 26). 	The Courts GRANTS Defendants’ motion
for summary judgment (ECF No. 20). 	IT IS SO ORDERED.
Dated: June 10, 2026 	/s/ Paul L. Maloney
PAUL L. MALONEY
UNITED STATES DISTRICT JUDGE
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