Butler v. Department Human Services, et al

Filing 26

ORDER OVERRULING PLAINTIFFS OBJECTIONS (Doc. 23) AND ADOPTING REPORT AND RECOMMENDATION (Doc. 17) AND DISMISSING CASE AND DENYING PENDING MOTIONS AS MOOT Signed by District Judge Avern Cohn. (MVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MIRANDA BUTLER,
Plaintiff,
Case No. 17-10458
vs.
HON. AVERN COHN
DEPARTMENT OF HUMAN SERVICES
and JULIE H. HOLLY,
Defendants.
__________________________________/
ORDER
OVERRULING PLAINTIFF’S OBJECTIONS (Doc. 23)
AND ADOPTING REPORT AND RECOMMENDATION (Doc. 17)
AND DISMISSING CASE
AND DENYING PENDING MOTIONS AS MOOT
I.
This is a pro se case under 42 U.S.C. § 1983. Plaintiff is suing the Department
of Human Services and Julie H. Holly. The matter was referred to a magistrate judge
for pretrial proceedings. (Doc. 6). The magistrate judge issued a issued a report and
recommendation (MJRR), recommending that the case be dismissed under 28 U.S.C. §
1915(e)(2)(B).1 (Doc. 17).
Before the Court are plaintiff’s objections to the MJRR. (Doc. 23). For the
reasons that follow, the objections are OVERRULED, the MJRR is ADOPTED, and the
case is DISMISSED and all pending motions are DENIED AS MOOT.

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In light of this recommendation, the magistrate judge also recommends that
plaintiff’s pending motions be denied as moot.

II.
A district court must conduct a de novo review of the parts of a magistrate
judge's report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1). The
district "court may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate" judge. Id. The requirement of de novo
review "is a statutory recognition that Article III of the United States Constitution
mandates that the judicial power of the United States be vested in judges with life
tenure." United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985).
III.
Plaintiff makes a sole objection. She contends that the magistrate judge did not
have the authority to rule on the complaint and, more particularly, consider her motion to
amend the complaint.
The order of reference to the magistrate judge cites 28 U.S.C. § 636 (b)(1)(A)
and (b)(1)(B). These sections provide:
(b)(1) Notwithstanding any provision of law to the contrary-(A) a judge may designate a magistrate judge to hear and determine any pretrial
matter pending before the court, except a motion for injunctive relief, for
judgment on the pleadings, for summary judgment, to dismiss or quash an
indictment or information made by the defendant, to suppress evidence in a
criminal case, to dismiss or to permit maintenance of a class action, to dismiss
for failure to state a claim upon which relief can be granted, and to involuntarily
dismiss an action. A judge of the court may reconsider any pretrial matter under
this subparagraph (A) where it has been shown that the magistrate judge's order
is clearly erroneous or contrary to law.
(B) a judge may also designate a magistrate judge to conduct hearings, including
evidentiary hearings, and to submit to a judge of the court proposed findings of
fact and recommendations for the disposition, by a judge of the court, of any
motion excepted in subparagraph (A), of applications for posttrial1 relief made by
individuals convicted of criminal offenses and of prisoner petitions challenging
conditions of confinement.
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Plaintiff relies on subsection (b)(1)(A) to argue that her motion to amend is a “judgment
on the pleadings” which is excluded from review by a magistrate judge. Plaintiff’s
reliance on subsection (b)(1)(A) is misplaced. First, plaintiff’s motion to amend is not a
motion for judgment on the pleadings. Second, even it if were so considered, under
subsection (b)(1)(B), a magistrate judge may make a report and recommendation on
any of the motions excluded in subsection (b)(1)(A), including a motion for judgment on
the pleadings. Moreover, the magistrate judge recommended that the complaint be
dismissed because it fails to state a proper claim against either defendant.
As to the substance of the magistrate judge’s recommendation, the Court agrees
that the complaint does not state a viable claim and must be dismissed under 28 U.S.C.
§ 1915(e)(2)(B).
SO ORDERED.

S/Avern Cohn
AVERN COHN
UNITED STATES DISTRICT JUDGE
Dated: 10/10/2017
Detroit, Michigan

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