Herron v. Ditchman et al

Filing 35

ORDER Adopting 34 Report and Recommendation and Granting Defendants' 25 and 30 Motions for Summary Judgment. Signed by District Judge Matthew F. Leitman. (HMon)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
SHAWN MICHAEL HERRON II,
Plaintiff,

Case No. 17-cv-10091
Hon. Matthew F. Leitman

v.
JOHN DITCHMAN, et al.,
Defendants.
__________________________________________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION (ECF # 34)
AND GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY
JUDGMENT (ECF ## 25, 30)

In this action under 42 U.S.C. §1983, Plaintiff Shawn Michael Herron II
alleges that Defendants John Ditchman and Dan Wilkinson violated his Eighth
Amendment rights by restraining him and forcibly administering injections. The
Defendants have filed motions for summary judgment in which they argue that
Herron’s claims are barred by the applicable statute of limitations. The assigned
Magistrate Judge has issued a Report and Recommendation in which she
recommends granting the Defendants’ motions. (ECF #34.) The Magistrate Judge
explained that the applicable limitations period is three-years and that Herron filed
his claims almost four years after the alleged incident. At the conclusion of the

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Report and Recommendation, the Magistrate Judge informed Herron that he had
fourteen days in which to file objections. Herron has not filed any objections.
The failure to object to an R&R releases the Court from its duty to
independently review the matter. See Thomas v. Arn, 474 U.S. 140, 149 (1985). But
the Court has nonetheless conducted an independent review of the matter, and the
Court concludes that the Magistrate Judge’s analysis and recommended disposition
are correct. Herron alleges that the assault occurred in 2013, and he did not file this
action until 2017 – well beyond the applicable three-year statute of limitations. See
Drake v. City of Detroit, 266 Fed. Appx. 444, 448 (6th Cir. 2008) (noting that claims
for personal injury under 42 U.S.C. §1983 are governed by Michigan’s three-year
statute of limitations).
In addition, the failure to file objections to an R&R waives any further right
to appeal. See Howard v. Sec'y of Health and Human Servs., 932 F.2d 505 (6th Cir.
1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.
1987).
Accordingly, because Herron has failed to file any objections to the R&R and
because the recommended disposition is correct, IT IS HEREBY ORDERED that
the Magistrate Judge’s recommendation to grant Defendants’ Motions for Summary
Judgment is ADOPTED.

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IT IS FURTHER ORDERED that Defendants’ Motions for Summary
Judgment are GRANTED.

s/Matthew F. Leitman
MATTHEW F. LEITMAN
UNITED STATES DISTRICT JUDGE

Dated: August 24, 2018

I hereby certify that a copy of the foregoing document was served upon the
parties and/or counsel of record on August 24, 2018, by electronic means and/or
ordinary mail.
s/Holly A. Monda
Case Manager
[phone]

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