Cosgrove v. MDOC et al

Filing 40

ORDER (1) Accepting the Recommendation Contained in the Magistrate Judge's Report and Recommendation Dated February 2, 2016 (Dkt. 38 ); (2) Granting Defendant's Motion to Dismiss (Dkt. 22 ); and Terminating all Other Motions as Moot(Dkts. 6 , 7 , 12 , 19 , 26 , 28 , 33 ). Signed by District Judge Mark A. Goldsmith. (Sandusky, K) (Main Document 40 replaced on 2/22/2016) (Sandusky, K).

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION CARY COSGROVE, Plaintiff, vs. Case No. 15-cv-11419 HON. MARK A. GOLDSMITH MICHIGAN DEPARTMENT OF CORRECTIONS, et al., Defendant. _________________________/ ORDER (1) ACCEPTING THE RECOMMENDATION CONTAINED IN THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION DATED FEBRUARY 2, 2016 (Dkt. 38); (2) GRANTING DEFENDANTS’ MOTION TO DISMISSED (Dkt. 22); and TERMINATING ALL OTHER MOTIONS AS MOOT (Dkts. 6, 7, 12, 19, 26, 28, 33) This matter is presently before the Court on the Report and Recommendation (R&R) of Magistrate Judge Stephanie Dawkins Davis, issued on February 2, 2016. In the R&R, the Magistrate Judge recommends that Defendant’s motion to dismiss be granted and that all remaining motions be terminated as moot. The parties have not filed objections to the R&R, and the time to do so has expired. See Fed. R. Civ. P. 72(b)(2). The failure to file a timely objection to an R&R constitutes a waiver of the right to further judicial review. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not appear that Congress intended to require district court review of a magistrate’s factual or legal conclusions, under a de novo or any other standard, when neither party objects to those findings.”); Smith v. Detroit Fed’n of Teachers, 829 F.2d 1370, 1373-1374 (6th Cir. 1987) (failure to file objection to R&R “waived subsequent review of the matter”); Cephas v. Nash, 328 F.3d 98, 108 (2d Cir. 2003) (“As a rule, a party’s failure to object to any purported error or omission in a magistrate judge’s report waives further judicial review of the point.”); Lardie v. Birkett, 221 F. Supp. 2d 806, 807 (E.D. Mich. 2002) (“As to the parts of the report and recommendation to which no party has objected, the Court need not conduct a review by any standard.”). However, there is some authority that a district court is required to review the R&R for clear error. See Fed. R. Civ. P. 72 Advisory Committee Note Subdivision (b) (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”). Therefore, the Court has reviewed the R&R for clear error. On the face of the record, the Court finds no clear error and accepts the recommendation. Accordingly, Defendants’ motion to dismiss is granted, and Plaintiff’s complaint is dismissed with prejudice. All other motions are terminated as moot. SO ORDERED. Dated: February 22, 2016 Detroit, Michigan s/Mark A. Goldsmith MARK A. GOLDSMITH United States District Judge CERTIFICATE OF SERVICE The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on February 22, 2016. s/Karri Sandusky Case Manager 2

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