Moore v. Liewert

Filing 70

ORDER denying 60 Motion for Reconsideration and adopting 65 Report and Recommendation. Signed by District Judge George Caram Steeh. (MLan)

Case 2:20-cv-11144-GCS-EAS ECF No. 70, PageID.460 Filed 01/19/23 Page 1 of 4

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
CHARLES MOORE,
Plaintiff,
vs.
D. LIEWERT,

Case No. 20-CV-11144
HON. GEORGE CARAM STEEH

Defendant.
_____________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
(ECF NO. 65) AND DENYING PLAINTIFF’S MOTION
FOR RECONSIDERATION (ECF NO. 60)
This matter is before the Court on plaintiff Charles Moore’s motion for
reconsideration of the Court’s order granting defendant’s motion for
summary judgment. The Court found that plaintiff could not sustain his
claims that defendant was deliberately indifferent to plaintiff’s serious
medical needs, engaged in retaliation in violation of the First Amendment,
or violated his equal protection rights. The Court also reasoned that
defendant was protected by qualified immunity and sovereign immunity.
The basis of plaintiff’s motion for reconsideration is that the Magistrate
Judge erred in denying his motion to strike defendant’s motion for an
extension of time to move for summary judgment and erred in granting the

Case 2:20-cv-11144-GCS-EAS ECF No. 70, PageID.461 Filed 01/19/23 Page 2 of 4

request for more time.
The Court referred plaintiff’s motion for reconsideration to the
Magistrate Judge for a Report and Recommendation (“R&R”). Plaintiff’s
argument was that fraud had been committed due to the fact that the
motion for extension used the name of a non-party instead of naming the
proper defendant. The Magistrate Judge determined that counsel
inadvertently failed to update the name of the defendant in the pleading,
but that it was an obvious scrivener’s error which did not mislead the Court
and did not qualify as a palpable defect which required a different
disposition of the case.
When ruling on objections to an R&R, the court conducts a de novo
review of the portions of the R&R to which a party has filed specific
objections. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Smith v.
Detroit Fed'n of Teachers, Local 231, 829 F.2d 1370, 1373 (6th Cir. 1987).
On the other hand, general objections, or ones that merely restate
arguments previously presented to the magistrate judge, are not valid
objections and are “tantamount to a complete failure to object.” Cole v.
Yukins, 7 F. App'x 354, 356 (6th Cir. 2001). Here, plaintiff submitted
objections reiterating the importance of naming the proper party in
pleadings and requiring that rules and procedures be followed by litigants.
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None of plaintiff’s objections change the fact that the Court was not mislead
in defendant’s request for more time to file a motion for summary judgment.
Nor did the Court err in granting such motion. Plaintiff’s objections shall be
overruled.
Plaintiff filed a notice of appeal while his motion for reconsideration
was pending. The finality requirement of 28 U.S.C. § 1291 prevents the
filing of an effective notice of appeal until the Court has had an opportunity
to dispose of all motions that seek to amend or alter what otherwise would
be considered a final judgment. Osterneck v. Ernst & Whinney, 489 U.S.
169, 174 (1989). Plaintiff’s notice of appeal (ECF No. 61) is therefore
ineffective. Fed. R. App. P. 4(a)(4)(A)(iv). Entry of this order denying
plaintiff’s motion for reconsideration is a final and appealable order.
Now, therefore,
IT IS HEREBY ORDERED that plaintiff’s objections are OVERRULED.
IT IS HEREBY FURTHER ORDERED that the Report and
Recommendation (ECF No. 65) is ACCEPTED by the Court.
IT IS HEREBY FURTHER ORDERED that defendants’ motion for
reconsideration (ECF No. 60) is DENIED.
Dated: January 19, 2023

s/George Caram Steeh
GEORGE CARAM STEEH
UNITED STATES DISTRICT JUDGE
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Case 2:20-cv-11144-GCS-EAS ECF No. 70, PageID.463 Filed 01/19/23 Page 4 of 4

CERTIFICATE OF SERVICE
Copies of this Order were served upon attorneys of record on
January 19, 2023, by electronic and/or ordinary mail and also
on Charles Moore #223268, Parnall Correctional Facility –
SMT, 1780 E. Parnall, Jackson, MI 49201.
s/Michael Lang
Deputy Clerk

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