Rogers v. Michigan, State of et al

Filing 25

ORDER Adopting in Part 16 Report and Recommendation and Dismissing 1 Complaint Without Prejudice. Signed by District Judge David M. Lawson. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SAMUEL C. ROGERS,
Plaintiff,
Case Number 16-11155
Honorable David M. Lawson
Magistrate Judge David R. Grand

v.
STATE OF MICHIGAN, and
MICHIGAN FRIEND OF THE COURT,
Defendants.
_________________________________________/

ORDER ADOPTING IN PART REPORT AND RECOMMENDATION AND
DISMISSING COMPLAINT WITHOUT PREJUDICE
Presently before the Court is the report issued on July 27, 2016 by Magistrate Judge David
R. Grand pursuant to 28 U.S.C. § 636(b), recommending that the Court dismiss the plaintiff’s
complaint with prejudice because the plaintiff has not paid the filing fee or filed an application to
proceed in forma pauperis. The magistrate judge’s report explicitly stated that the parties to this
action may object to and seek review of the recommendation within fourteen days of service of the
report. The plaintiff subsequently filed a number of documents purportedly objecting to the
magistrate judge’s report. His first objection was mailed on August 1, 2016, however it was not
received by the Clerk’s office until August 24, 2016. He also filed three additional objections that
appear to be continuations of his initial objection. The three subsequent objections are identical to
each other, but were sent and filed on different dates. The plaintiff also filed both a summary and
a letter explaining the plaintiff’s theory of the case.
The plaintiff filed his complaint on March 25, 2016. Shortly thereafter, the Clerk of the
Court made a docket entry noting that the plaintiff had not paid the filing fee or submitted an

application to proceed in forma pauperis. On May 19, 2016, the magistrate judge entered an order
observing that the plaintiff had been notified of the filing deficiencies and ordering him to show
cause in writing why the case should not be dismissed for failing to cure the filing defects. On May
31, 2016, the plaintiff filed a response to the show cause order that summarized his theory of the
case, but failed to address his ability to pay the required filing fee. The magistrate judge
subsequently issued a notice of deficiency and final order to show cause why the case should not be
dismissed for want of prosecution and failure to comply with orders of the Court on or before June
27, 2016. The plaintiff filed a response saying that he was unable to pay the filing fee, but offered
no further explanation. The magistrate judge subsequently filed the current report recommending
that the plaintiff’s case be dismissed with prejudice.
Although a document filed by a pro se litigant is to be construed liberally, Erickson v.
Pardus, 551 U.S. 89, 94 (2007), such leniency “is not boundless,” Martin v. Overton, 391 F.3d 710,
714 (6th Cir. 2004). Objections to a magistrate judge’s report “must be clear enough to enable the
district court to discern those issues that are dispositive and contentious.” Miller v. Currie, 50 F.3d
373, 380 (6th Cir. 1995). Objections failing “‘to specify the findings . . . believed [to be] in error’
are too general.” Spencer v. Bouchard, 449 F.3d 721, 725 (6th Cir. 2006), abrogated on other
grounds by Jones v. Bock, 549 U.S. 199, 220–21 (2007) (quoting Miller, 50 F.3d at 380).
Even construing the plaintiff’s filings liberally, there is nothing in the filings that can be
construed as an objection to the report. The plaintiff’s purported objections explain his theory of the
case, but not any error made by the magistrate judge. In his objections, he notes that various nonparties to this case are allegedly “interfering with every job [he] had and have been trying to do
everything to keep [him] financially down. . . .” But he does not explain how these individuals are
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interfering with his ability to file an application to proceed in forma pauperis. Therefore, there have
been no objections to the magistrate judge’s report that need to be addressed. 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). The Court agrees with the findings of the
magistrate judge. However, a dismissal for failing to pay a filing fee usually should be without
prejudice, as it amounts to little more than a failure to prosecute. See Brown v. Mills, 639 F.3d 733,
734 (6th Cir. 2011) (affirming the district court’s order that the petitioner’s habeas petition “be
dismissed without prejudice for failure to prosecute, based on his failure to pay the filing fee”).
Accordingly, it is ORDERED that the magistrate judge’s report and recommendation [dkt.
#16] is ADOPTED IN PART.
It is further ORDERED that the complaint is DISMISSED WITHOUT PREJUDICE.

s/David M. Lawson
DAVID M. LAWSON
United States District Judge
Dated: March 21, 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 March 21, 2017.
s/Julie Owens
JULIE OWENS

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