Wilson v. Omlstead et al

Filing 33

ORDER Adopting 31 Report and Recommendation for Granting 23 Motion to Dismiss, filed by Michigan Braille Transcribing Fund, Cindy Olmstead. Signed by District Judge Sean F. Cox. (JMcC)

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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION George Wilson, Plaintiff, Case No. 16-10847 v. Honorable Sean F. Cox Cindy Olmstead, et. al., Magistrate Judge Stephanie Dawkins Davis Defendants. _______________________________/ ORDER REGARDING 4/26/17 REPORT & RECOMMENDATION Acting pro se, Plaintiff filed this § 1983 suit against multiple Defendants. This Court referred the matter to Magistrate Judge Stephanie Dawkins Davis for all pretrial matters. On September 2, 2017, Defendants Cindy Olmstead and Michigan Braille Transcribing Fund (“MBTF”) filed a Motion to Dismiss, pursuant to Fed. R. Civ. P. 12(b)(6). In a Report and Recommendation (“R&R”) issued on April 26, 2017, the magistrate judge recommends that the Court grant the Motion to Dismiss. The magistrate judge concludes that Plaintiff fails to state a § 1983 claim against Defendants because Plaintiff has no constitutional right to a prison job and because his allegations do not support a relation between the loss of his job and the transfer. The magistrate judge did not analyze Defendant’s alternative arguments, such as their argument that they are not state actors for purposes of § 1983. Pursuant to FED. R. CIV. P. 72(b), a party objecting to the recommended disposition of a matter by a Magistrate Judge must filed objections to the R&R within fourteen (14) days after being served with a copy of the R&R. 1 On May 8, 2017, Plaintiff filed Objections to the April 26, 2017 Report and Recommendation. (Docket Entry No. 32). Although the R&R advised Plaintiff that any objection must be specific and identify the provision of the R&R to which it pertains, several of Plaintiff’s “objections” simply cite various portions of the R&R without explaining why Plaintiff objects to them. Other portions of the Objections simply restate arguments that Plaintiff made before the magistrate judge in responding to Defendants’ Motion to Dismiss. Those objections that are specific are without merit. For example, Plaintiff appears to believe that the magistrate judge accepted Defendants’ argument that they are not state actors. But the magistrate judge did not address that alternative argument. Plaintiff also argues that he was not given the opportunity to develop his theories through discovery. That argument fails because the motion at issue is a Motion to Dismiss, brought pursuant to Fed. R. Civ. P. 12(b)(6) and, therefore, considers the sufficiency of the complaint. Having reviewed the pending motion and the R&R, the Court concurs with the magistrate judge’s analysis and overrules Plaintiff’s objections. Accordingly, IT IS ORDERED that the Court ADOPTS the April 26, 2017 Report and Recommendation and GRANTS Defendant Olmstead and MBTF’s Motion to Dismiss. Plaintiff’s claims against Defendant Olmstead and MBTF shall be DISMISSED WITH 2 PREJUDICE. IT IS SO ORDERED. Dated: May 26, 2017 s/Sean F. Cox Sean F. Cox U. S. District Judge I hereby certify that on May 26, 2017, the foregoing document was served on counsel of record via electronic means and upon George Wilson via First Class mail at the address below: George Wilson 199258 EARNEST C. BROOKS CORRECTIONAL FACILITY 2500 S. SHERIDAN DRIVE MUSKEGON HEIGHTS, MI 49444 s/J. McCoy Case Manager 3

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