Kelly v. Ybarra

Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION

VINCENT PATRICK KELLY a/k/a VICTORIA KELLY, Plaintiff, Case No. 24-10828 Honorable Shalina D. Kumar v. Magistrate Judge Patricia T. Morris

YBARRA, Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION (ECF No. 26) AND DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT (ECF NO. 16)

Plaintiff Vincent Patrick Kelley, a/k/a Victoria Kelly1 (“Kelly”), a pro se prisoner under Michigan Department of Corrections’ jurisdiction, initiated this civil action under 42 U.S.C. § 1983 against Ybarra for violations of her constitutional rights, and alleges retaliation and targeted harassment motivated by her gender identity and expression. ECF No. 1. This case was referred to the assigned magistrate judge for all pretrial purposes. ECF No. 12.

1 In her complaint, Kelly states that she is a “Trans-Woman” and refers to herself using feminine pronouns, e.g. she/her. ECF No. 1, PageID.1-2. Therefore, the undersigned will use feminine pronouns when referring to Kelly. Page 1 of 3 Ybarra filed a motion for summary judgment on the basis of exhaustion. ECF No. 16. On July 25, 2025, the assigned magistrate judge

issued a Report and Recommendation (R&R). ECF No. 26. The R&R recommends that the Court deny Ybarra’s motion for summary judgment because there are genuine issues of material fact as to exhaustion for each

of Kelly’s claims. ECF No. 26. Neither party filed objections to the R&R. The failure to file a timely objection to an R&R constitutes a waiver of the right for further judicial review. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court

review of a magistrate’s factual or legal conclusion, under a de novo or any other standard, when neither party objects to those findings”); Smith v. Detroit Fed’n of Teachers, 829 F.2d 1370, 1373-74 (6th Cir. 1987) (failure

to file objection to R&R “waived subsequent review of the matter”); Lardie v. Birkett, 221 F. Supp. 2d 806, 807 (E.D. Mich. 2002) (“As to the part of the report and recommendation to which no party has objected, the Court need not conduct a review by any standard.”). However, there is some

authority that a district court is required to review the R&R for clear error. See Fed. R. Civ. P. 72 Advisory Committee Note Subdivision (b) (“When no timely objection is filed, the court need only satisfy itself that there is no

Page 2 of 3 clear error on the face of the record in order to accept the recommendation.”). Therefore, the Court has reviewed the R&R for clear

error and finds none. Accordingly, the Court ADOPTS the R&R (ECF No. 26) and DENIES Ybarra’s motion for summary judgment (ECF No. 16).

IT IS SO ORDERED. s/ Shalina D. Kumar SHALINA D. KUMAR Dated: August 20, 2025 United States District Judge

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