Waller v. Moore-Patton et al

Filing 73

ORDER Denying 72 Motion for Extension, Adopting the 68 Report and Recommendation, Granting 61 Motion for Summary Judgment, and Denying 66 Motion for Summary Judgment. Signed by District Judge David M. Lawson. (SPin)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
DANIEL C. WALLER, JR.,
Plaintiff,
Case Number 15-13305
Honorable David M. Lawson
Magistrate Judge David R. Grand

v.
TIAVON MOORE-PATTON, RAMONA
VINCENT, MARIA ROSADO, BENJAMIN
QUANTA MiDOGE, CRINISHA HALL,
ANGELA CALLOWAY, and ROBERT CAIN,
Defendants.
_______________________________________/

ORDER DENYING PLAINTIFF’S MOTION FOR AN EXTENSION OF TIME TO FILE
OBJECTIONS, ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION, GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT, AND DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT
Presently before the Court is the report issued on January 18, 2017 by Magistrate Judge
David R. Grand pursuant to 28 U.S.C. § 636(b), recommending that the Court grant the motion for
summary judgment by defendants Tiavon Moore-Patton, Ramona Vincent, Maria Rosado, Benjamin
Quanta MiDodge, Crinisha Hall, Angela Calloway, and Robert Cain, and deny the plaintiff’s motion
for summary judgment. The report stated that the parties to this action could object to and seek
review of the recommendation within fourteen days of service of the report. On February 1, 2017,
the plaintiff filed a motion to extend the time to file objections. The Court granted the motion, and
extended the time to file objections to February 20, 2017.
Rather than file objections, the plaintiff filed a “motion for pause for plaintiffs response to
objection.” In his motion, the plaintiff explains that before filing this case, he was provided an
attorney through his local union to assist him with filing a grievance against many of the same
defendants in this case. According to the plaintiff, an arbitration hearing was held in December

2016. The plaintiff is now asking the Court to extend the time for him to file objections until after
the arbitration resolves. Despite engaging in the union grievance process, the plaintiff voluntarily
filed the present case. Although the arbitration may concern some of the same issues and parties
involved in this case, it is a wholly separate matter. The case before this Court must proceed on its
own schedule. The plaintiff has not provided sufficient grounds to allow a further extension of the
time to file objections to the magistrate judge’s report. The motion therefore will be denied.
No objections were filed to the magistrate judge’s report and recommendation. The parties’
failure to file objections to the report and recommendation waives any further right to appeal. Smith
v. Detroit Fed’n 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 matter. Thomas v. Arn, 474 U.S. 140, 149 (1985). However, the Court agrees with the findings
and conclusions of the magistrate judge.
The Court observes that defendants Doug Spicer and Peter Young are listed erroneously as
defendants in this case. They were initially added to the docket when the plaintiff filed a second
amended complaint, which included them as defendants. However, the magistrate judge struck the
second amended complaint because it was filed almost three months after the close of discovery, and
the plaintiff did not have written consent by the opposing parties or leave of the Court to do so. See
Federal Rule of Civil Procedure 15(a) & (b) (Once 21 days has passed from serving the complaint
or the filing of a responsive pleading, “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave.”). Therefore, defendants Doug Spicer and Peter Young
are not parties to this case.

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Accordingly, it is ordered that the plaintiff’s motion for pause for plaintiff’s response to
objection [dkt. #72] is DENIED.
It is further ORDERED that the magistrate judge’s report and recommendation [dkt. #68]
is ADOPTED.
It is further ORDERED that the motion for summary judgment filed by defendants Tiavon
Moore-Patton, Ramona Vincent, Maria Rosado, Benjamin Quanta MiDodge, Crinisha Hall, Angela
Calloway, and Robert Cain [dkt. #61] is GRANTED.
It is further ORDERED that the motion for summary judgment filed by plaintiff Daniel C.
Waller [dkt. #66] is DENIED.
It is further ORDERED that the amended complaint is DISMISSED WITH PREJUDICE.

s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: February 23, 2017

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on February 23, 2017.
s/Susan Pinkowski
SUSAN PINKOWSKI

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