Anderson v. Furst et al

Filing 42

ORDER Dismissing 38 Plaintiff's Objection to Court's Order. Signed by District Judge Victoria A. Roberts. (LVer)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
JERRY ANDERSON
Plaintiff,
Case No. 17-12676
v.
Honorable Victoria A. Roberts
COLTER FURST, et al.,
Defendant.
_________________________________/
ORDER DISMISSING PLAINTIFF’S OBJECTION TO COURT’S ORDER [Doc. # 38]
Jerry Anderson (“Anderson”) is a state prisoner proceeding in forma pauperis. He
filed a civil rights lawsuit against Michigan State Police Troopers Colter Furst, Michael
Thomas, and Nathan Ellis (collectively, “Defendants”). In his complaint, Anderson
alleges that Defendants violated his Fourth Amendment rights by using excessive force
during his arrest.
Anderson filed an objection [Doc. # 38] to Magistrate Judge Anthony Patti’s April
23, 2018 order denying as moot his motion compelling discovery.
For the reasons that follow, Anderson’s objection is DISMISSED.
I.

Background
On February 26, 2018, Anderson filed a motion for an order compelling

discovery, seeking the production of several files and documents. He claims that on
January 16, 2018, he mailed Defendants and the Court a written request for these
documents, but had yet to receive them. In their response to Anderson’s motion,
Defendants say they never received the request, and that his motion is moot because
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they mailed appropriate responses after he filed his motion. Magistrate Judge Patti ruled
that Anderson did not follow the proper procedures to obtain the requested records, and
denied his motion as moot since Defendants did respond to his request.
In his objection, Anderson says the Court erred because: 1) pursuant to E.D.
Mich. Local Rule 7.1(a)(2)(C), incarcerated pro se parties need not seek concurrence;
2) the legal mail disbursements attached as exhibits show that the Court and
Defendants were served with his discovery request; and 3) an incomplete disclosure or
answer must be treated as a failure to disclose or answer, pursuant to Fed. R. Civ. P.
37.
II.

Legal Standard
When reviewing a magistrate judge’s order on a preliminary, non-dispositive

matter, a district court must modify or set aside any part of the order that is “clearly
erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a); United
States v. Curtis, 237 F.3d 598, 602-03 (6th Cir. 2001). “The ‘clearly erroneous’
standard applies only to the magistrate judge’s factual findings; legal conclusions are
reviewed under the plenary ‘contrary to law’ standard.” Visteon Global Techs. v. Garmin
Int’l, Inc., 903 F. Supp. 2d 521, 524-25 (E.D. Mich. 2012) (citations omitted). “A finding
is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court
on the entire evidence is left with the definite and firm conviction that a mistake has
been committed.” United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). If two
or more permissible views of the evidence exists, a magistrate judge’s decision cannot
be “clearly erroneous.” Anderson v. City of Bessemer City, N., 470 U.S. 564, 574
(1985). “A legal conclusion is contrary to law when it fails to apply or misapplies relevant
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statutes, case law, or rules of procedure.” Robinson v. Allstate Ins. Co., 2011 U.S. Dist.
LEXIS 81316, at *6 (E.D. Mich. July 26, 2011) (citation omitted). “The ‘contrary to law’
standard requires the Court to use independent judgment when reviewing legal
conclusions.” Id. (citation omitted).
III.

Analysis
Anderson does not show that Magistrate Judge Patti made any finding that was

clearly erroneous or contrary to law. First, while Local Rule 7.1(a)(2)(C) implies that pro
se prisoners need not seek concurrence when filing motions, the rule requires that the
motion must state that concurrence was not obtained because one of the parties is a
pro se prisoner. E.D. Mich. LR 7.1(a)(2)(C). Anderson’s motion did not state this.
Second, although Anderson attaches to his objection what he says is his first request for
production, mailed January 16, 2018, the Court and Defendants do not have a record of
this mailing. As Magistrate Judge Patti stated in his order, Anderson’s motion is his first
recorded discovery request. Further, this after-the-fact attachment does not cure
Anderson’s failure to attach his discovery request to his motion, as required by Local
Rule 37. Anderson did not follow the requisite procedures to obtain documents from
Defendants. His arguments fail.
Finally, Anderson does not refute Defendants’ claim that they mailed responses
to his request. This leads the Court to believe that these responses were indeed mailed,
and that Magistrate Judge Patti did not err in denying Anderson’s motion as moot.

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IV.

Conclusion
Anderson fails to show that Magistrate Judge Patti’s order is clearly erroneous or

contrary to law. His objection is DISMISSED.
IT IS ORDERED.
S/ Victoria A. Roberts
Victoria A. Roberts
United States District Judge
Dated: June 13, 2018

The undersigned certifies that a copy of this
document was served on the attorneys of record
and Jerry Anderson by electronic means or U.S.
Mail on June 13, 2018.
s/Linda Vertriest
Deputy Clerk

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