govinfo:USCOURTS-miwd-1_23-cv-01353-4

UNITED STATES DISTRICT COURT 
WESTERN DISTRICT OF MICHIGAN 
SOUTHERN DIVISION 
 
HORACE W. CRUMP, #236528,     ) 
    Plaintiff,  ) 
       ) No. 1:23-cv-1353 
-v-       ) 
       ) Honorable Paul L. Maloney 
LORI BLUE, et al.,      ) 
    Defendants.  ) 
       ) 
 
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION 
 
 Four defendants filed a motion for summary judgment raising lack of exhaustion.  
ECF No. 60.  The Magistrate Judge issued a report recommending the court dismiss certain 
causes of action for failure to state a claim and also recommending, alternatively, th at the 
court grant the motion for summary judgment and dismiss some of the claims as 
unexhausted.  ECF No. 73.  Plaintiff filed objections.  ECF No. 79.  The court will adopt in 
part the report and recommendation. 
I. 
After being served with a report and recommendation (R&R) issued by a magistrate 
judge, a party has fourteen days to file written objections to the proposed findings and 
recommendations.  28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2).  A district court j udge 
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).   
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II. 
Some background about the progress of this case provides context for the Magistrate 
Judge’s recommendations and Plaintiff’s objections.  Plaintiff is a prisoner under the control 
of the Michigan Department of Corrections (MDOC).  Plaintiff previously filed at least three 
lawsuits that had been deemed frivolous and he is subject to the three -strikes rule.  See 28 
U.S.C. § 1915(g).  Plaintiff filed this lawsuit and sought leave to proceed without paying the 
filing fee.  Plaintiff consented to the jurisdiction of the Magistrate Judge.  The Magistrate 
Judge then dismissed the l awsuit without prejudice because Plaintiff did not plead facts to 
support imminent danger and he had not paid the filing fee.  The Sixth Circuit reversed the 
dismissal, vacated the order and remanded the matter.  The court concluded that the 
Magistrate Judge erred in applying the three -strikes rule; not all of Plaintiff’s earlier lawsuits 
should have counted as a strike.   
Following the remand, the Magistrate Judge granted Plaintiff leave to proceed without 
prepayment of the filing fee.  The record does not show that the court conducted an initial 
screening of the complaint under 28 U.S.C. § 1915(e)(2).  Three of the four defendants 
named in the initial complaint — Blue, Mikel, and Shaw — filed a motion for summary 
judgment for lack of exhaustion.
1
  The Magistrate Judge issued a report recommending the 
court grant the motion for summary judgment, which the court later adopted. 
 
1
  Nurse Practitioner Suzanne Groff did not join the motion for summary judgment.  The court 
infers that Groff is not employed by MDOC but by the entity providing health care services to 
MDOC-run prisons.   
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Along with his response to the motion for summary judgment, Plaintiff sought leave 
to file an amended complaint.  The Magistrate Judge granted the motion.  In the order, the 
Magistrate Judge addressed the arguments raised by the defendants in opposition to  the 
amended complaint.  While the defendants characterized their arguments as demonstrating 
futility, the Magistrate Judge disagreed with that characterization and explained why.  Because 
the defendants did not properly raise a futility argument, the Magi strate Judge did not 
consider whether the causes in the amended complaint were futile.   
The Magistrate Judge then issued an amended case management order (CMO).  ECF 
No. 59.  The CMO states that the court had conducted an initial review of the complaint 
under 28 U.S.C. § 1915(e) (2) and states that the court had determined that the complaint 
survives the initial screening.  Id. PageID.499. 
III. 
Four defendants— Brawl, LaMontagne, Mikel and Riley— filed a motion for summary 
judgment for lack of exhaustion.  ECF No. 60.  The Magistrate Judge then issued the pending 
report and recommendation.  The Magistrate Judge begins the report and recommendation 
by conducting an initial screening  of the amended complaint  under § 1915(e)(2).  The 
Magistrate Judge summarizes the claims against most of the defendants in the amended 
complaint:  
(1) Riley - 8th Amendment Verbal Harassment and 1st Amendment retaliation; 
(2) Mikel and Groff – 8th Amendment Deliberate Indifference (moved Plaintiff from 
the Special Need Unit to general population); 
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(3) LaMontagne -  8th Amendment Deliberate Indifference and 1st Amendment 
retaliation;  
(4) Brawley – 14th Amendment Due Process.
2
 
The Magistrate Judge sets forth the relevant law for each  of these claims, summarizes the 
relevant facts, and recommends dismissing each claim for failure to state a claim.   
 The Magistrate Judge then considered the motion for summary judgment.  The 
Magistrate Judge recommends the court dismiss the claims against defendants Riley and 
Brawley as unexhausted.  The Magistrate Judge recommends dismissing the 8th Amendment 
claim against Mikel and Groff concerning the decision to move Plaintiff from the Special 
Needs Unit to general population as unexhausted.  The Magistrate Judge recommends 
denying the motion for summary judgment concerning the claim against LaMontagne.  The 
Magistrate Judge notes that if the court adopts the first part of the report and 
recommendation (the § 1915(e)(2) screening), the court need not consider the 
recommendations concerning the motion for summary judgment.  The only claim that would 
remain is a claim against Groff related to a delay in ordering prescribed medicine (Baclofen).   
 Plaintiff objects to the § 1915(e)(2) review of his amended complaint.  Plaintiff argues 
that the Magistrate Judge previously conducted the initial screening and found his allegations 
sufficient, as evidenced by the language in the amended case management order.   
 The court denies Plaintiff’s objection.  First, district courts have inherent authority to 
reconsider interlocutory orders and reopen any part of the case prior to a final judgment.  
 
2
  The Magistrate Judge did not include any review of Plaintiff’s claim against Defendant Groff 
related to a delay in ordering prescribed medication.   
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Mallory v. Eyrich , 922 F.2d 1273, 1282 (6th Cir. 1991).  “A district court may modify, or 
even rescind, such interlocutory orders.”  Id.  The use of boilerplate language in the amended 
CMO appears to be in error.  The Magistrate Judge begins the report and recommendation 
by stating that the amended complaint had not been reviewed under § 1915(e)(2).  ECF No. 
73 PageID.618.  The Magistrate Judge’s review functioned to correct the erroneous 
statement in the amended CMO.  Second, even if the Magistrate Judge had already reviewed 
the amended complaint, the court would deny Plaintiff’s objection.  The statute does not 
limit the court’s ability to review the complaint a second time.  See Topolski v. Wrobleski, 
No. 5:13cv0872, 2014 WL 2215761, at *10 (N.D.N.Y. May 29, 2014) (finding that a court 
“may perform a § 1915(e)(2) review more than once”).  Section 1915(e)(2) expressly states 
that the court “shall dismiss the case 
at any time if the court determines that” the action fails 
to state a claim upon which relief can be granted.  Plaintiff does not object to the description 
of the claims, the relevant law for each claim, the description of the underlying facts, or the 
application of those facts to the law.   
 With this conclusion, the court need not consider the Magistrate Judge’s analysis of 
the pending motion for summary judgment filed by Defendants Brawl, LaMontagne, Riley 
and Mikel.  As noted by the Magistrate Judge, that motion is moot because the court f inds 
that the amended complaint fails to state a claim against those four defendants.   
 Accordingly, the court ADOPTS IN PART the report and recommendation.  ECF 
No. 73.  The court DIMISSES as moot, the motion for summary judgment.  ECF No. 60.  
The court dismisses the claims in the amended complaint against Defendants Brawl, 
LaMontagne, Mikel, and Riley.   The court specifically adopts the  findings and 
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recommendation of the  Magistrate Judge’s § 1915(e)(2) screening of the claims in the 
amended complaint and the conclusion that the complaint fails to state a claim.  The only 
remaining claim is Plaintiff’s claim against Groff for the delay in ordering prescribed 
medicine.  The court notes that De fendant Groff filed a motion for summary judgment for 
lack of exhaustion, ECF No. 74, and Plaintiff has filed a response, ECF No. 81.  The court 
anticipates that the Magistrate Judge will likely issue another report  and recommendation 
concerning the remaining claim and pending motion.  
IT IS SO ORDERED.  
Date:      June 15, 2026       /s/  Paul L. Maloney  
        Paul L. Maloney 
        United States District Judge 
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