Broskey v. Gidley et al

Filing 58

ORDER Accepting the Magistrate Judge's Report and Recommendation for 56 Report and Recommendation and Dismissing Complaint. Signed by District Judge Laurie J. Michelson. (TMcg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SONNY BROSKEY,
Plaintiff,
v.

Case No. 2:16-cv-13572-LJM-SDD
Honorable Laurie J. Michelson
Magistrate Judge Stephanie Dawkins Davis

LORI GIDLEY, et al.,
Defendants.
ORDER ACCEPTING THE MAGISTRATE JUDGE’S RECOMMENDATION [56]
AND DISMISSING COMPLAINT
Sonny Broskey, who has been released from prison, apparently no longer wants to pursue
his lawsuit about mistreatment during his prison term. In particular, in January 2018, C. Smith,
the remaining named defendant (John and Jane Does also remain), moved for summary
judgment. (R. 49.) Magistrate Judge Stephanie Dawkins Davis, to whom all pretrial matters have
been referred, ordered Broskey to respond to C. Smith’s motion by March 19, 2018. (R. 51.)
That date came and went without a response. So in early April 2018, Magistrate Judge Davis
ordered Broskey to show cause; Broskey’s failure to do so would result in a recommended
dismissal, she warned. But Broskey was released from prison on March 27, 2018. And Broskey
did not—as he is required to do—provide the Court with his new address. So Magistrate Judge
Davis’ show-cause order was returned as undeliverable. (R. 53, 55.) On July 30, 2018, consistent
with her show-cause order, Magistrate Judge Davis issued a report and recommendation to
dismiss Broskey’s case. (R. 56.) As Broskey still had not provided a new address, that report and
recommendation was also returned as undeliverable. (R. 57.)

In her July 30, 2018 Report and Recommendation, Magistrate Judge Davis notified the
parties that they were required to file any objections within 14 days of service, as provided in
Federal Rule of Civil Procedure 72(b)(2) and Eastern District of Michigan Local Rule 72.1(d),
and that “[f]ailure to file specific objections constitutes a waiver of any further right of appeal.”
(R. 56, PageID.447.) As it is now August 17, 2018, the time to file objections has expired. And
no objections have been filed.
The Court finds that the parties’ failure to object is a procedural default, waiving review
of the Magistrate Judge’s findings by this Court. In United States v. Walters, 638 F.2d 947, 949–
50 (6th Cir. 1981), the Sixth Circuit established a rule of procedural default, holding that “a party
shall file objections with the district court or else waive right to appeal.” And in Thomas v. Arn,
474 U.S. 140, 144 (1985), the Supreme Court explained that the Sixth Circuit’s waiver-of
appellate-review rule rested on the assumption “that the failure to object may constitute a
procedural default waiving review even at the district court level.” 474 U.S. at 149; see also
Garrison v. Equifax Info. Servs., LLC, No. 10-13990, 2012 WL 1278044, at *8 (E.D. Mich. Apr.
16, 2012) (“The Court is not obligated to review the portions of the report to which no objection
was made.” (citing Thomas, 474 U.S. at 149–52)). The Court further held that this rule violates
neither the Federal Magistrates Act nor the Federal Constitution.

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The Court therefore finds that the parties have waived further review of the Magistrate
Judge’s Report and accepts her recommended disposition. It follows that Broskey’s complaint
against C. Smith is DISMISSED WITH PREJUDICE pursuant to Federal Rule of Civil
Procedure 41(b) and that the Doe defendants are DISMISSED WITHOUT PREJUDICE. This is
a final order; a separate judgment will issue.
SO ORDERED.

Dated: August 20, 2018

s/Laurie J. Michelson
U. S. DISTRICT JUDGE

CERTIFICATE OF SERVICE
The undersigned certifies that a copy of the foregoing document was served on the
attorneys and/or parties of record by electronic means or U.S. Mail on August 20, 2018.
s/Teresa McGovern
Case Manager Generalist

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