White v. Jindal et al

Filing 168

ORDER ADOPTING REPORT AND RECOMMENDATION (Doc. 166) AND GRANTING IN PART PLAINTIFFS MOTION NUNC PRO TUNC Doc. 141 TO ADOPT AMENDED COMPLAINT (Doc. 149)AND DENYING PLAINTIFFS MOTIONS FOR SANCTIONS (Docs. 150, 152)ANDDENYING WITHOUT PREJUDICE DEFENDANTS MOTION FOR SANCTIONS (Doc. 153) AND MOTION FOR SUMMARY JUDGMENT (Doc. 158) Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MARK WHITE,
Plaintiff,
v.

Case No. 13-15073
HON. AVERN COHN

PAUL KLEE, LEE McROBERTS,
and C. CONDON,
Defendants.
___________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION (Doc. 166)
AND
GRANTING IN PART PLAINTIFF’S MOTION NUNC PRO TUNC Doc. 141 TO ADOPT
AMENDED COMPLAINT (Doc. 149)
AND
DENYING PLAINTIFF’S MOTIONS FOR SANCTIONS (Docs. 150, 152)
AND
DENYING WITHOUT PREJUDICE DEFENDANTS’ MOTION FOR SANCTIONS (Doc.
153) AND MOTION FOR SUMMARY JUDGMENT (Doc. 158)
I.
This is a prisoner civil rights case under 42 U.S.C. § 1983. Plaintiff is proceeding
pro se and in forma pauperis (IFP). The matter has been referred to a magistrate judge
for all pretrial proceedings. Following motion practice and reports and recommendation
(MJRR) which were adopted by the Court, Paul Klee, Lee McRoberts and C. Condon,
remain as defendants. They are employed by the Michigan Department of Corrections
(MDOC). Plaintiff claims that these defendants have violated his Eighth Amendment
rights by placing him in danger from other inmates.
As the magistrate judge noted, there are several pending motions. On October

20, 2016, the magistrate judge issued a MJRR on some of the pending motions.1 The
magistrate judge recommends the following:
•

Plaintiff’s Motion Nunc Pro Tunc to Dismiss Docket #141 and to Adopt
Amended Complaint as Filed Exhibit A in Docket #128 (Doc. 149) be
granted in part;

•

both of Plaintiff’s motions for contempt/sanctions (Docs. 150, 152) be
denied;

•

Defendants’ Motion for Rule 11 Sanctions (Doc. 153) be denied without
prejudice;

and
•

Defendants’ Motion for Summary Judgment (Doc. 158) be denied without
prejudice.

Neither party has objected to the recommendations2 of the magistrate judge and
the time for filing objections has passed.
II.
The failure to file objections to the report and recommendation waives any further
right to appeal. Smith v. Detroit Federation of Teachers Local 231, 829 F.2d 1370,
1373 (6th Cir.1987). Likewise, the failure to object to the magistrate judge's report
releases the Court from its duty to independently review the motions. Thomas v. Arn,

1

The magistrate judge stated that the other pending motions will be addressed in
a subsequent MJRR.
2

Defendants filed a paper styled “objections” in which they “object only to correct
the record.” (Doc. 167). Defendants seek to clarify that certain allegations of
wrongdoing by defendants’ counsel which formed the basis for plaintiff’s motions for
sanctions ere allegations, not facts. Defendants further say that to the extent the MJRR
implies that the allegations were “facts,” the MJRR should be corrected. A fair read of
the MJRR shows that although the magistrate judge used the word “fact” to describe the
allegations of wrongdoing, it was in the context of explaining plaintiff’s grounds for the
motions. There is no indication that the magistrate judge accepted plaintiff’s allegations
of wrongdoing as actual facts. Thus, defendant’s “objections” are unnecessary.
2

474 U.S. 140, 149 (1985).
However, the Court has reviewed the MJRR and agrees with the magistrate
judge. Accordingly, the findings and conclusions of the magistrate judge are ADOPTED
as the findings and conclusions of the Court.
•

Plaintiff’s Motion Nunc Pro Tunc to Dismiss Docket #141 and Motion to
Adopt Amended Complaint as Filed Exhibit A in Docket #128 (Doc. 149)
be GRANTED IN PART;

•

both of Plaintiff’s motions for contempt/sanctions (Docs. 150, 152) be
DENIED;

•

Defendants’ Motion for Rule 11 Sanctions (Doc. 153) be DENIED
WITHOUT PREJUDICE;

and
•

Defendants’ Motion for Summary Judgment (Doc. 158) be DENIED
WITHOUT PREJUDICE.

SO ORDERED.

Dated: November 30, 2016
Detroit, Michigan

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE

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