Rickman v. Tantchou et al

Filing 42

ORDER adopting 40 Report and Recommendation and denying 38 Plaintiff's Motion to Reopen Case. Signed by District Judge Avern Cohn. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MILTON RICKMAN,
Plaintiff,
v.

Case No. 11-13079

MICHELINE TANTCHOU, M.D.,
SCOTT FRIESORGER, and
JEFF SHAW,

HON. AVERN COHN

Defendants.
___________________________________/
ORDER
ADOPTING REPORT AND RECOMMENDATION (Doc. 40)
AND
DENYING PLAINTIFF’S MOTION TO REOPEN THE CASE (Doc. 38)
I.
This is a prisoner civil rights case under 42 U.S.C. § 1983 which has closed.
Plaintiff, proceeding pro se, claimed that defendants have violated his constitutional
rights under the First, Eighth, and Fourteenth Amendments. Plaintiff’s claims stem from
having his medical detail for a double mattress removed. Plaintiff sued Micheline
Tantchou (Tantchou), a physician, alleging she improperly removed the medical detail.
Plaintiff also sued Scott Friesorger (Friesorger) and Jeff Shaw (Shaw), employees of the
Michigan Department of Correction (MDOC), alleging they conspired to have his double
mattress taken away in retaliation for an earlier grievance plaintiff filed against Shaw.
The matter was referred to a magistrate judge for all pretrial proceedings. (Doc. 7).
Before the Court are plaintiff’s objections to the magistrate judge’s

recommendation that plaintiff’s motion to reopen the case be denied. For the reasons
that follow, the magistrate judge’s recommendation will be adopted and plaintiff’s motion
to reopen will be denied.
II.
A.
Friesorger and Shaw filed a summary judgment motions on the grounds that
plaintiff had failed to exhaust his administrative remedies as to them. (Doc. 11). The
magistrate judge issued a report and recommendation (MJRR) recommending that
Friesorger and Shaw’s motion be granted. (Doc. 28). Plaintiff filed objections. (Doc.
31). The Court agreed with the magistrate judge that plaintiff had not exhausted his
administrative remedies against Friesorger or Shaw. Accordingly, the Court adopted
the MJRR, granted defendants’ motion, and dismissed plaintiff’s claims against
Friesorger and Shaw without prejudice. (Doc. 33).
B.
Regarding Tantchou, she has not been served despite several attempts. On
March 23, 2012, the magistrate judge issued a MJRR, recommending that Tantchou be
sua sponte dismissed without prejudice for failure to effect timely service. (Doc. 30).
Plaintiff did not file objections to the MJRR. Accordingly, on May 16, 2012, the Court
adopted the MJRR and dismissed plaintiff’s claims against Tantchou without prejudice
for failure to effect service. (Doc. 35). Because Tantchou was the sole remaining
defendant, the Court also closed the case.

Almost two months after the case was closed, on July 19, 2012, plaintiff filed a
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motion to reopen the case, contending he is able to provide an address for Tantchou for
service. The magistrate judge recommends that the motion be denied, explaining that
plaintiff’s claims against Tantchou were dismissed without prejudice and plaintiff still has
time remaining in which to file a complaint against Tantchou. Thus, the magistrate
judge concludes there is no good reason to allow plaintiff to reopen the case instead of
filing a new complaint.
III.
A district court must conduct a de novo review of the parts of a magistrate
judge's report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1). The
district "court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate" judge. Id. The requirement of de novo
review "is a statutory recognition that Article III of the United States Constitution
mandates that the judicial power of the United States be vested in judges with life
tenure." United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985).
A general objection, or one that merely restates the arguments previously
presented, is not sufficient to alert the court to alleged errors on the part of the
magistrate judge. An "objection" that does nothing more than state a disagreement with
a magistrate judge's suggested resolution, or simply summarizes what has been
presented before, is not an objection as that term is used in this context. Howard v.
Sec'y of Health and Human Servs., 932 F.2d 505, 508 (6th Cir. 1991) (“It is arguable in
this case that Howard’s counsel did not file objections at all.... [I]t is hard to see how a
district court reading [the ‘objections’] would know what Howard thought the magistrate
had done wrong.”).
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IV.
Plaintiff’s objections fail to convince the Court that the case should be reopened
in order to serve Tantchou. As explained in the MJRR recommending that Tantchou be
dismissed, much effort was expended to locate and serve Tantchou.1 Although plaintiff
says he was not given enough time to find Tantchou and states that he requested the
MDOC and Corizon Health to provide Tantchou’s address to the Marshals, it is plaintiff’s
obligation to provide an address for service. Moreover plaintiff was given ample time
and multiple attempts at service were made before the case was closed. At this point,
plaintiff has the option to file another complaint against Tantchou.

Accordingly, the findings and conclusions of the magistrate judge are ADOPTED

1

The efforts relating to service on Tantchou are as follows: Plaintiff stated in his
complaint, filed on July 15, 2011, that Tantchou was employed at the St. Louis Pine
River Correctional Facility. (Compl., Doc. 1 ¶ 9.) On August 22, 2011, the magistrate
judge directed the U.S. Marshal to serve process on Tantchou. (Doc. 8.) The next
docket entry relating to Tantchou is dated November 2, 2011, and states that the U.S.
Marshal made a second attempt to serve Tantchou by mailing the complaint to a new
address that was provided by the Michigan Department of Corrections (“MDOC”). The
waiver was not returned and no appearance was filed on behalf of Tantchou. On
January 5, 2012, the magistrate judge ordered the U.S. Marshal to personally serve
Tantchou at the address provided by the MDOC. (Doc. 20.). The magistrate judge’s
was late notified by the Marshal’s office that personal service at that address failed
because the address was the headquarters of Corizon Health, and Corizon stated that
they will not accept service because Tantchou is not an employee of Corizon. On
January 30, 2012, Plaintiff was ordered to show cause why the claims against Tantchou
should not be dismissed for failure to serve process. (Doc. 21.) Plaintiff responded and
filed a motion to serve Tantchou at a new address plaintiff provided. (Doc. 26.). The
magistrate judge granted the motion and the Marshal’s office was directed to serve
process at the new address. (Doc. 27.) On March 22, 2012, the Marshal attempted
service at the new address but was unsuccessful. An employee at that location stated
that Tantchou no longer works there
and that they have “no forwarding information.” (Doc. 29.)
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as the findings and conclusions of the Court. Plaintiff’s motion to reopen is DENIED.
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

Dated: August 23, 2012

I hereby certify that a copy of the foregoing document was mailed to the attorneys of
record on this date, August 23, 2012, by electronic and/or ordinary mail.

S/Julie Owens
Case Manager, [phone]

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