Johnston v Berryhill

Filing 20

ORDER Adopting 19 Report and Recommendation re 18 Motion for Summary Judgment filed by NANCY A BERRYHILL, 15 Motion for Summary Judgment filed by Cheryl Johnston. Signed by District Judge Laurie J. Michelson. (WBar)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHERYL JOHNSTON,
Plaintiff,
v.

Case No. 17-13308
Honorable Laurie J. Michelson
Magistrate Judge Anthony P. Patti

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION [19] AND GRANTING
DEFENDANT’S AMENDED MOTION FOR SUMMARY JUDGMENT [18] AND
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT [15]

Before the Court is Magistrate Judge Anthony P. Patti’s Report and Recommendation.
(ECF No. 19.) At the conclusion of his January 29, 2019 Report and Recommendation, Magistrate
Judge Patti 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.” (ECF No. 19, PageID.1128.) It is now February 19, 2019. As such, 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-ofappellate-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.
The Court therefore finds that the parties have waived further review of the Magistrate
Judge’s Report and accepts his recommended disposition. It follows that this Court DENIES
Plaintiff’s motion for summary judgment (ECF No. 15), and GRANTS Defendant’s motion for
summary judgment (ECF. No. 18). As this order resolves this litigation, a separate judgment will
issue.
SO ORDERED.
s/Laurie J. Michelson
LAURIE J. MICHELSON
UNITED STATES DISTRICT JUDGE

Date: February 19, 2019

CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing document was served upon counsel of record
and/or pro se parties on this date, February 19, 2019, using the Electronic Court Filing system
and/or first-class U.S. mail.

s/William Barkholz
Case Manager

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