Malott v. Haas et al

Filing 35

ORDER Denying 30 Report and Recommendation, Dismissing Case and Denying 24 Motion for Summary Judgment as Moot. Signed by District Judge Thomas L. Ludington. (KWin)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN NORTHERN DIVISION MICHAEL MALOTT, Plaintiff, Case No. 16-cv-13014 v Honorable Thomas L. Ludington RANDALL HAAS, et al., Magistrate Judge David R. Grand Defendants. __________________________________________/ ORDER ADOPTING REPORT AND RECOMMENDATION, DISMISSING CASE, AND DENYING MOTION FOR SUMMARY JUDGMENT AS MOOT On August 17, 2016, Plaintiff Micahel Malott initiated the above-captioned matter by filing his pro se complaint against Defendants Randall Haas, George Stephanson, “Inspector Steece”, and “Mr. Robinson.” See Compl., ECF No. 1. Plaintiff alleges that, by ignoring his request for protection, Defendants are responsible for an assault he was subjected to by fellow inmates. Id. The matter was referred to Magistrate Judge David R. Grand for report and recommendation. After Plaintiff struggled to serve Defendant Robinson, MDOC eventually furnished a letter to the Clerk’s Office representing that Robinson was “now deceased.” See ECF No. 27. As a result, on January 4, 2017 Magistrate Judge Grand directed Plaintiff to show cause as to why his complain should not be dismissed as to Defendant Robinson. See ECF No. 28. Plaintiff did not respond as directed. On December 12, 2016 Defendants Haas, Steece, and Stephanson filed a motion for summary judgment. See ECF No. 24. The following day, the magistrate issued an order directing Plaintiff to respond to the summary judgment order on or before January 6, 2017. See ECF No. 26. After Plaintiff failed to respond, on January 13, 2017, the magistrate directed Plaintiff to show cause as to why his case should not be dismissed for failure to prosecute pursuant to Federal Rule of Civil Procedure 41(b). See ECF No. 29. Plaintiff again did not respond as directed. On February 8, 2017 the magistrate judge issued his report and recommendation, recommending that Plaintiff’s case be dismissed for failure to prosecute. See ECF No. 30. Although the magistrate judge’s report explicitly states that the parties could object to and seek review of the recommendation within fourteen days of service of the report, Plaintiff did not file any objections within that time period. However, over thirty days after the issuance of the magistrate judge’s report, on March 17, 2017, Plaintiff Malott submitted a letter to the clerk’s office claiming that officials at the Oaks Correctional Facility conspired to prevent him from accessing the Court in retaliation for his filing of the lawsuit. See ECF No. 31. Plaintiff represented that he had since been transferred to the Gus Harrison Correctional Facility, and requested an update on the status of his case. As a result, Plaintiff’s address was updated and his deadline to object to the magistrate judge’s report was extended to April 12, 2017. See ECF No. 32. On April 4, 2017 Plaintiff submitted a response in which he notes that he is dealing with his Court access issue through the prison’s administrative grievance process. He also represents that he does not object to the dismissal of his case. See ECF No. 34. The election not to file objections to the magistrate judge’s report releases the Court from its duty to independently review the record, and waives any further right to appeal. Thomas v. Arn, 474 U.S. 140, 149 (1985). -2- Accordingly, it is ORDERED that the magistrate judge’s report and recommendation, ECF No. 30, is ADOPTED. It is further ORDERED that Plaintiff’s complaint, ECF No. 1, is DISMISSED. It is further ORDERED that Defendant’s motion for summary judgment, ECF No. 24, is DENIED as moot. s/Thomas L. Ludington THOMAS L. LUDINGTON United States District Judge Dated: April 5, 2017 PROOF OF SERVICE The undersigned certifies that a copy of the foregoing order was served upon each attorney or party of record herein by electronic means or first class U.S. mail on April 5, 2017. s/Kelly Winslow for MICHAEL A. SIAN, Case Manager -3-

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