St. Ann v. McLean et al
Filing
29
OPINION and ORDER Denying Plaintiff's 28 Objection and 27 Adopting Report and Recommendation to Grant in Part and Deny in Part Defendants' Motion for Summary Judgment - Signed by District Judge Judith E. Levy. (FMos)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
David St. Ann,
Plaintiff,
Case No. 15-cv-11770
v.
Judith E. Levy
United States District Judge
Todd McLean, et al.,
Defendants.
Mag. Judge Anthony P. Patti
________________________________/
OPINION AND ORDER DENYING PLAINTIFF’S OBJECTION
AND ADOPTING THE REPORT AND RECOMMENDATION TO
GRANT IN PART AND DENY IN PART DEFENDANTS’ MOTION
FOR SUMMARY JUDGMENT [27]
On August 15, 2016, Magistrate Judge Anthony P. Patti filed a
Report and Recommendation finding that only plaintiff’s claims against
“McLean, Potila, Morgan and/or Haynes which concern the limited
subject of plaintiff remaining at Level IV (or maximum security/
disciplinary unit) following the February 14, 2014 expiration of his
detention and loss of privileges” should survive summary judgment.
(Dkt. 27 at 36.)
Plaintiff filed a timely objection to the Report and
Recommendation. (Dkt. 28.) For the reasons set forth below, plaintiff’s
objection is denied and the Report and Recommendation is adopted in
full.
When resolving objections to a Report and Recommendation, the
Court “must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).
The Court “may accept, reject, or modify the recommended disposition;
receive further evidence, or return the matter to the magistrate judge
with instructions.” Id.; see also 28 U.S.C. § 636(b)(1).
I.
Background
Plaintiff brought suit against various corrections officers in May
2015.
(Dkt. 1.)
In August 2015, plaintiff filed his first amended
complaint—the operative pleading here. (Dkt. 6.) In October 2015, a
fellow prisoner assaulted plaintiff, and plaintiff filed a motion to amend
his complaint to include claims related to the assault in July 2015.
(Dkt. 23.) Judge Patti has not yet ruled on plaintiff’s motion to amend
the August 2015 complaint. Plaintiff’s operative complaint here does
not include the claims that arose in October 2015.
In August 2016, Judge Patti issued a Report and Recommendation
addressing defendants’ February 2016 motion for summary judgment.
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(Dkt. 16.)
The Report and Recommendation recommends granting
defendants’ motion for summary judgment as to all claims except “the
plaintiff’s claims against “McLean, Potila, Morgan and/or Haynes which
concern the limited subject of plaintiff remaining at Level IV (or
maximum security/ disciplinary unit) following the February 14, 2014
expiration of his detention and loss of privileges.” (Dkt. 27 at 36.)
II.
Analysis
a. Objection No. 1
Plaintiff
sets
forth
one
objection
to
the
Report
and
Recommendation: essentially that Judge Patti “refus[ed] to allow him to
amend his second complaint.” (Dkt. 28 at 2.) Plaintiff’s objection cites
the portion of the Report and Recommendation that declined to address
plaintiff’s claims that are not contained in his operative complaint.
(Dkt. 28 at 7; Dkt. 27 at 25.)
Specifically, Judge Patti noted that the “basis of Plaintiff’s claims
against non-party Buczek [are addressed] in his July 15, 2016 second
motion to amend his complaint.”
(Dkt. 27 at 35.)
And because
plaintiff’s sole objection to the Report and Recommendation concerns
his July 2016 motion to amend his complaint, plaintiff has not properly
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objected to any of the Magistrate Judge’s findings in the Report and
Recommendation. Thus, plaintiff’s objection is denied because plaintiff
has “fail[ed] to specify findings believed to be in error” in the Report and
Recommendation currently before the Court. Spencer v. Bouchard, 449
F.3d 721, 725 (6th Cir. 2006).
Accordingly, plaintiff’s objection is denied. Once Judge Patti rules
on plaintiff’s pending motion to amend his complaint, plaintiff can
renew his objection if it is appropriate. (Dkt. 23.)
III.
Conclusion
For the reasons set forth above, it is hereby ordered that:
The Report and Recommendation (Dkt. 27) is ADOPTED;
All of plaintiff’s claims other than those against “McLean, Potila,
Morgan and/or Haynes which concern the limited subject of plaintiff
remaining at Level IV (or maximum security/ disciplinary unit)
following the February 14, 2014 expiration of his detention and loss of
privileges” are DISMISSED WITH PREJUDICE.
The Court certifies that an appeal of this decision would not be
taken in good faith.
IT IS SO ORDERED.
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Dated: October 4, 2016
Ann Arbor, Michigan
s/Judith E. Levy
JUDITH E. LEVY
United States District Judge
CERTIFICATE OF SERVICE
The undersigned certifies that the foregoing document was served
upon counsel of record and any unrepresented parties via the Court’s
ECF System to their respective email or First Class U.S. mail addresses
disclosed on the Notice of Electronic Filing on October 4, 2016.
s/Felicia M. Moses
FELICIA M. MOSES
Case Manager
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