Peltier v. Derakhshondeh

Filing 25

ORDER OVERRULING Objections, ADOPTING IN FULL 15 Report and Recommendation and DENYING the Request for a Temporary Restraining Order, Signed by District Judge Robert H. Cleland. (LWag)

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

CHARLES PELTIER,
Plaintiff,
v.

Case No. 15-13717

CONSTANCE DERAKHSHANDEH,
Defendant.
____________________________/
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE’S REPORT AND
RECOMMENDATION AND DENYING PLAINTIFF’S MOTION
FOR A TEMPORARY RESTRAINING ORDER
Pending before the court is the Report and Recommendation (“R. & R.”) of
Magistrate Judge Anthony P. Patti, (Dkt. # 15), which recommends denying Plaintiff’s
Motion for a Temporary Restraining Order, (Dkt. # 3). Plaintiff has filed an Objection.
(Dkt. # 19.) The court concludes that a hearing is unnecessary. See E.D. Mich. LR
7.1(f)(2). For the reasons stated below and in the well-reasoned R. & R., the court will
overrule Plaintiff’s Objection, adopt the R. & R., and deny Plaintiff’s Motion for a
Temporary Restraining Order.
I. STANDARD
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). See United States v. Raddatz, 447
U.S. 667 (1980); United States v. Walters, 638 F.2d 947 (6th Cir. 1981). This de novo
review requires this court to examine the relevant pleadings and such evidence as may

have ben submitted in support of the motions to determine the outcome of the motions.
Failure to file objections and failure to file specific objections each constitute a
waiver of any further right of appeal. United States v. Walters, 638 F.2d 947 (6th Cir.
1981); Thomas v. Arn, 474 U.S. 140 (1985); Howard v. Sec’y of HHS, 932 F.2d 505 (6th
Cir. 1991). Filing of objections that raise only some issues in the report and
recommendation, but fail to raise others with specificity, will not preserve all the
objections a party might have. Smith v. Detroit Fed’n of Teachers Local 231, 829 F.2d
1370 (6th Cir. 1987); Willis v. Sec’y of HHS, 931 F.2d 390 (6th Cir. 1991).
II. DISCUSSION
Plaintiff lodges what appears to be one general objection. Construing the pro se
filing liberally, he argues that the Magistrate Judge misapplied the four-factor test courts
utilize in considering a motion for a temporary restraining order. See Sandison v. Mich.
High Sch. Athletic Ass’n, Inc., 64 F.3d 1026, 1030 (6th Cir. 1995) (considering the
likelihood of success on the merits, the potential for irreparable harm, the interest of
third parties, and the public’s interest). Plaintiff seeks to restrain the Michigan
Department of Corrections from transferring him to another prison, but he has not
established that such a transfer would cause him irreparable harm, as the Magistrate
Judge found. He will have access to substantially similar facilities and resources
wherever he is housed. Plaintiff has also failed to established a likelihood of success on
the merits and has not proffered any evidence to show that his fears of a retaliatory
transfer have any basis. The court has reviewed Plaintiff’s Motion and the Magistrate
Judge’s R. & R. and determines that it is correctly reasoned and that Plaintiff’s objection
should be overruled.
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III. CONCLUSION
For the reasons discussed above, IT IS ORDERED that Plaintiff’s Objection (Dkt.
# 19) is OVERRULED and the magistrate judge’s report and recommendation (Dkt.
15) is ADOPTED IN FULL and incorporated by reference.
IT IS FURTHER ORDERED that Plaintiff’s Motion for a Temporary Restraining
Order (Dkt. # 3) is DENIED.

S/Robert H. Cleland
ROBERT H. CLELAND
UNITED STATES DISTRICT JUDGE
Dated: April 12, 2016

I hereby certify that a copy of the foregoing document was mailed to counsel of record
on this date, April 12, 2016, by electronic and/or ordinary mail.

S/Lisa Wagner
Case Manager and Deputy Clerk
[phone]

S:\Cleland\JUDGE'S DESK\C2 ORDERS\15-13717.PELTIER.adoptRRdenyTRO.smq.wpd

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