Marsh v. Rhodes et al

Filing 42

ORDER adopting 37 Report and Recommendation ; denying 21 Motion to Dismiss; striking 26 Motion for Summary Judgment; Establishing Deadlines. Signed by District Judge Victoria A. Roberts. (CPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DEVONNE MARSH,
Plaintiff,
Case No. 14-cv-12947
v.
HONORABLE VICTORIA A. ROBERTS
LEO RHODES and,
THE CITY OF DETROIT,
Defendants.
/
ORDER:
1. ADOPTING REPORT AND RECOMMENDATION (ECF NO. 37);
2. DENYING DEFENDANTS’ MOTION TO DISMISS (ECF NO. 21);
3. STRIKING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (ECF NO. 26);
AND 4. ESTABLISHING DEADLINES
I.

INTRODUCTION
Before the Court are two dispositive motions by Defendants, Leo Rhodes and the

City of Detroit: a Motion to Dismiss (ECF No. 21) and a Motion for Summary Judgment
(ECF No. 26). The Motion to Dismiss was fully briefed and pursuant to an order of
Reference dated January 27, 2015, Magistrate Judge David R. Grand issued a Report
and Recommendation (“R & R”) (ECF No. 37). Defendants filed a Response to
Plaintiff’s Objection. The briefing with respect to Magistrate Judge Grand’s R & R is
complete.
Plaintiff, Devonne Marsh has not filed a response to Defendants’ Motion for
Summary Judgment. Because of the nature of Magistrate Judge Grand’s
recommendations on the motion to dismiss and ongoing discovery disputes,
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Defendants’ Motion for Summary Judgment will be stricken without prejudice.
Defendants may re-file their motion following completion of the discovery outlined in
Magistrate Judge Grands’ R & R.
II.

STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b), the filing of timely objections

requires the court to “make a de novo determination of those portions of the report or
specified findings or recommendations to which objection is made.” 28 U.S.C. §
636(b)(1); FED. R. CIV. P. 72(b); see also United States v. Raddatz, 447 U.S. 667, 100
S.Ct. 2406, 65 L.Ed.2d 424 (1980); United States v. Walters, 638 F.2d 947 (6th
Cir.1981); Alspaugh v. McConnell, 643 F.3d 162, 166 (6th Cir. 2011) ("Only those
specific objections to the magistrate's report made to the district court will be preserved
for appellate review; making some objections but failing to raise others will not preserve
all the objections a party may have."). This de novo review, in turn, requires this court to
re-examine all the relevant evidence previously reviewed by the magistrate judge to
determine whether the recommendation should be accepted, rejected, or modified in
whole or in part. 28 U.S.C. § 636(b)(1). The court may “receive further evidence” if
desired. Id. Any arguments made for the first time in objections to an R & R are deemed
waived. Uduko v. Cozzens, 975 F. Supp. 2d 750, 757 (E.D. Mich. 2013).
III.

DISCUSSION
A.

Timeliness

Defendants assert that Marsh’s objection was untimely. This is incorrect. 28
U.S.C. § 636(b)(1) affords litigants an opportunity to object to recommendations made

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by magistrate judges. It provides “Within fourteen days after being served with a copy,
any party may serve and file written objections to such proposed findings and
recommendations as provided by rules of court.” 28 U.S.C. § 636(b)(1). For pro se
prisoners, “being served with a copy” is a date that runs not from the date the R & R
was entered – as it would for a party who is represented by counsel – but rather from
the date the prisoner received a copy of the R & R in the mail. This date is often times
established by way of a sworn affidavit from the prisoner attesting to the date of receipt.
The end date of the fourteen day period provided in 28 U.S.C. § 636(b)(1) is not the
date that the court clerk receives and dockets the objection, but rather the date that the
prisoner submits, i.e. hands, the paperwork to be filed to a prison official. See Brand v.
Motley, 526 F.3d 921, 925 (6th Cir. 2008) (prisoner's filing deemed filed when handed to
prison official for mailing); Jackson v. Kment, No. 13-cv-10819, 2016 WL 1042538, at
*2-3 (E.D. Mich. Mar. 16, 2016).
Magistrate Judge Grand’s R & R was dated April 21, 2016. Marsh states in an
affidavit that he received the R & R on April 26, 2016. Fourteen days later would be May
10, 2016. The envelope containing Marsh’s Objection was post-marked May 9, 2016.
Therefore, Marsh’s Objection was timely filed one day ahead of the May 10, 2016,
deadline.
B.

Merits of Magistrate Judge Grand’s R & R

Defendants seek dismissal of March’s complaint pursuant to Federal Rules of
Civil Procedure 37 and 41 because Marsh failed to respond to their discovery requests
and because Marsh allegedly willfully terminated his deposition. Magistrate Judge
Grand’s R & R sets out the appropriate four-factor test to be used when considering
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sanctions under Rule 37 of the Federal Rules of Civil Procedure. Magistrate Judge
Grand properly determined that not all four factors are met because Marsh was not
previously warned and because no less drastic sanction has previously been imposed.
Marsh filed an Objection purportedly challenging not only the R & R that is the
subject of this Order, but also a prior order denying Marsh the ability to amend his
complaint, and another order denying Marsh’s motions to sanction Defendants.
Throughout the Objection, Marsh quibbles with various facts set forth by Defendants
and Magistrate Judge Grand. None of these assertions has any material impact on the
R & R, however, because the R & R recommends granting Marsh the relief he seeks -denial of Defendants’ Motion to Dismiss. Moreover, Marsh does not deny that he failed
to comply with discovery obligations; he admits “Plaintiff did not respond to Defendant’s
[sic] requests, which were due on October 25, 2015.” Pl.’s Obj. to R. & R. 14, ECF No.
38.
The Court concludes that the findings and conclusions of Magistrate Judge
Grand are correct and ADOPTS them for purposes of this Order.
Defendants’ Motion to Dismiss Marsh’s Complaint is DENIED. Defendants’
alternative request for an order requiring Plaintiff’s compliance in discovery is
GRANTED. Within fourteen (14) days of this Order, Marsh must fully and completely
respond to Defendants’ discovery requests. He must also provide full and complete
deposition testimony (to the extent deemed necessary by Defendants) at a time to be
scheduled. Defendants’ request for costs is DENIED.
Defendants’ Motion for Summary Judgment is stricken without prejudice.

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Defendants may resubmit their motion following the completion of discovery.
Defendants are put on notice that their first Motion for Summary Judgment fell
short of standard motion practice norms. A well-developed motion not only states the
law, but also it provides the pertinent facts, and – most significantly and lacking in the
prior motion – it applies the facts of the dispute to relevant case law that addresses
similar issues. The bankruptcy argument had no affidavits or factual support on key
issues such as proof of claim or satisfaction of the notice requirement; it contained no
pincites to an order that spanned over 200 pages, and it did not cite to a single judicial
opinion by either a district or circuit court. The Monell argument was not tailored to the
claims and policies alleged in the Amended Complaint. In addition, the resubmitted
motion should contain a statement of undisputed facts as an appendix.
The Court establishes the following deadlines:
Discovery must be completed by August 19, 2016
Dispositive Motions must be filed by September 21, 2016
Responses are due October 12, 2016
Replies are due October 26, 2016
IT IS ORDERED.
S/Victoria A. Roberts
United States District Judge
Dated: July 1, 2016

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