Marsh v. Social Security, Commissioner of

Filing 14

ORDER ADOPTING MAGISTRATE JUDGE'S 5 REPORT AND RECOMMENDATION AND DENYING WITHOUT PREJUDICE PLAINTIFFS EX PARTE MOTION FOR PRELIMINARY INJUNCTION Signed by District Judge Gerald E. Rosen. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
PHILLIP MARSH,
Plaintiff,
Case No. 15-11481
Hon. Gerald E. Rosen
Magistrate Judge David R. Grand

v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,
Defendant.
_______________________________/

ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION AND DENYING WITHOUT PREJUDICE
PLAINTIFF’S EX PARTE MOTION FOR PRELIMINARY INJUNCTION
At a session of said Court, held in
the U.S. Courthouse, Detroit, Michigan
on
October 6, 2015
PRESENT: Honorable Gerald E. Rosen
Chief Judge, United States District Court
On April 27, 2015, Magistrate Judge David R. Grand issued a report and
recommendation (“R & R”) recommending that the Court deny without prejudice an ex
parte motion for preliminary injunction filed by Plaintiff Phillip Marsh. Plaintiff filed
objections to the R & R on May 11, 2015. Upon reviewing the R & R, Plaintiff’s
objections, his underlying ex parte motion, and the remainder of the record, the Court
overrules Plaintiff’s objections and adopts the R & R as the opinion of this Court.
As his first objection to the R & R, Plaintiff takes issue with the Magistrate

Judge’s finding that the preliminary injunction he seeks in his motion may only be issued
after notice has been given to the Defendant Commissioner of Social Security. (See R &
R at 4-5 (citing Fed. R. Civ. P. 65(a)(1) and other authorities).) Yet, Plaintiff does not
point to any authority that would cast doubt upon the requirement of notice expressly set
forth in Rule 65(a)(1). To the contrary, Plaintiff tacitly acknowledges this requirement, as
well as his failure to satisfy it, and he asks instead that he be permitted to file an amended
motion in which he could either (i) “correct the procedural issues raised in” the R & R, or
(ii) pursue the different relief of a temporary restraining order under Rule 65(b).
(Plaintiff’s Objections at 1.)
Simply stated, nothing in the Magistrate Judge’s R & R would deny Plaintiff this
desired opportunity to seek preliminary relief from the Court prior to a decision on the
merits of Plaintiff’s underlying petition for mandamus relief. As expressly stated in the R
& R, the Magistrate Judge recommends that Plaintiff’s present motion be denied without
prejudice to Plaintiff’s opportunity to “file an appropriate motion” at a later date that
“address[es] the issues identified” in the R & R and “giv[es] the Defendant
[Commissioner] proper notice and an opportunity to respond.” (R & R at 6.) In light of
Plaintiff’s apparent acknowledgment of procedural defects in his present motion, the
Court is at a loss as to why Plaintiff elected to lodge objections to the R & R, rather than
pursuing his desired preliminary injunctive relief through an “appropriate motion” as
suggested by the Magistrate Judge.
Because Plaintiff has failed to identify any error in the Magistrate Judge’s
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conclusion that Plaintiff’s present motion is subject to denial on wholly procedural
grounds, there is no need for the Court to resolve Plaintiff’s remaining objections to the R
& R. Nonetheless, it is worth noting that Plaintiff suggests repeatedly in these remaining
objections that he be given an opportunity to offer additional evidence in support of his
claims of likely success on the merits and irreparable harm. (See Plaintiff’s Objections at
2-3.) Again, Plaintiff would be given precisely this opportunity by filing the “appropriate
motion” allowed under the Magistrate Judge’s R & R. In addition, the Magistrate Judge
correctly observes that Plaintiff’s present motion is supported only by select excerpts
from the administrative record and Plaintiff’s own “extremely vague” affidavit, (R & R at
5), and these deficiencies could best be overcome through a motion that is more
thoroughly supported and is served on the Defendant Commissioner, who in turn would
have the opportunity to supplement the record with additional materials deemed relevant
to Plaintiff’s request for preliminary injunctive relief.1
For these reasons,
NOW, THEREFORE, IT IS HEREBY ORDERED that Plaintiff’s May 11, 2015
objections to the Magistrate Judge’s report and recommendation (docket #6) are
OVERRULED, and that the Magistrate Judge’s April 27, 2015 report and
recommendation (docket #5) is ADOPTED as the opinion of this Court. IT IS

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Notably, since Plaintiff filed his objections to the Magistrate Judge’s R & R, the
Defendant Commissioner has filed a motion seeking the dismissal of Plaintiff’s underlying
petition for mandamus relief, based in large part on the Commissioner’s recent issuance of the
administrative decision that Plaintiff sought to compel through the present suit.
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FURTHER ORDERED, for the reasons stated in the R & R, that Plaintiff’s April 24,
2015 ex parte motion for preliminary injunction (docket #2) is DENIED WITHOUT
PREJUDICE.

s/Gerald E. Rosen
Chief Judge, United States District Court
Dated: October 6, 2015
I hereby certify that a copy of the foregoing document was served upon the parties and/or
counsel of record on October 6, 2015, by electronic and/or ordinary mail.
s/Julie Owens
Case Manager, [phone]

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