Vardon v. Dow Chemical Company

Filing 8

ORDER Adopting 6 Report and Recommendation, Overruling Plaintiff's Objections, and Dismissing Plaintiff's Complaint for Failure to State Claim. Signed by District Judge Thomas L. Ludington. (DWor)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
JAMES M. VARDON,
Plaintiff,
Case Number 11-12512-BC
Honorable Thomas L. Ludington

v.
DOW CHEMICAL COMPANY,
Defendant.
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ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION,
OVERRULING PLAINTIFF’S OBJECTIONS, AND DISMISSING PLAINTIFF’S
COMPLAINT FOR FAILURE TO STATE A CLAIM
Magistrate Judge Charles E. Binder issued a report and recommendation [Dkt. # 6] on June
28, 2011, recommending that the Court dismiss Plaintiff’s complaint pursuant to 28 U.S.C. §
1915(e)(2)(B) for failure to state a claim. Any party may serve and file written objections “[w]ithin
fourteen days after being served with a copy” of the report and recommendations. 28 U.S.C. §
636(b)(1). The district court will make a “de novo determination of those portions of the report
. . . to which objection is made.” Id. Plaintiff filed objections on July 28, 2011. Although the
objections were late, Plaintiff explained that the clerk’s office did not list Plaintiff’s correct address
on the docket and that delayed Plaintiff’s receipt of the report and recommendations. Accordingly,
Plaintiff’s objections will be considered.
Judge Binder concluded that Plaintiff’s complaint, which was filed without paying the $350
filing fee, should be dismissed pursuant to 28 U.S.C. § 1915(e)(2)(B) because he cannot bring a civil
rights claim against a private party like Defendant Dow Chemical Company. Indeed, Plaintiff’s
complaint does not allege that Defendant was acting under color of law, nor, for that matter, does
Plaintiff identify a specific constitutional provision that Defendant has violated. Plaintiff now

objects that he did not intend to bring a civil rights claim. He also does not identify the cause of
action he did intend to bring. As Judge Binder noted, the closest Plaintiff gets to identifying another
cause of action is checking the box marked “personal injury – products liability” on the Court’s civil
cover sheet. If it was Plaintiff’s intention to bring a products liability action to recover for his
personal injuries under Michigan law, his claims, which accrued more than forty years ago during
the Vietnam war, are barred by the three-year statute of limitations. Mich. Comp. Laws §
600.5805(11). Therefore, any tort claim Plaintiff intended to bring would also be subject to
dismissal under 28 U.S.C. § 1915(e)(2)(B).
Notably, the Court is sympathetic to Plaintiff’s claim that he and his family have suffered
adverse health problems. Still, Judge Binder correctly concluded that his complaint does not state
a claim for relief and therefore it must be dismissed. 28 U.S.C. § 1915(e)(2)(B). Although
Plaintiff’s complaint does not state a claim for relief against Defendant Dow Chemical Company,
there are other resources available from the Department of Defense for military veterans suffering
from Agent Orange exposure.1
Accordingly, it is ORDERED that the Judge Binder’s report and recommendation [Dkt. #
6] is ADOPTED.
It is further ORDERED that Plaintiff’s objections are OVERRULED.

1

See http://www.publichealth.va.gov/exposures/agentorange/index.asp.
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It is further ORDERED that Plaintiff’s complaint is DISMISSED for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B).
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
Dated: August 8, 2011

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon James M. Vardon, at P.O. Box 260834, Tampa, FL 33615 by first
class U.S. mail on August 8, 2011.
s/Tracy A. Jacobs
TRACY A. JACOBS

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