Nicklay v. Hoogstra et al

Filing 33

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 27 ; Plaintiff's complaint is dismissed with prejudice; the Court finds no good-faith basis for appeal; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF MICHIGAN S O U T H E R N DIVISION

ROBERT STEVEN NICKLAY, P l a in t i f f , v. E LIZA B E T H HOOGSTRA, et al., D e f e n d a n ts . / O R D E R AND JUDGMENT A P P R O V I N G REPORT AND RECOMMENDATION T h e Court has reviewed the Magistrate Judge's Report and Recommendation (docket # 27), Plaintiff's Objections (docket # 30) and all other pertinent matters of record. Under the Fe d e ra l Rules of Civil Procedure, when a party has objected to portions of a Report and R e c o m m e n d a tio n , "[t]he district judge . . . has a duty to reject the magistrate judge's re c o m m e n d a tio n unless, on de novo reconsideration, he or she finds it justified." 12 WRIGHT, M ILLE R , & MARCUS, FEDERAL PRACTICE AND PROCEDURE § 3070.2, at 381 (2d ed. 1997). S p e c ific a lly, the Rules provide that: The district judge must determine de novo any part of the m a gis tra te judge's disposition that has been properly objected to. T h e district judge may accept, reject, or modify the recommended d is p o sitio n ; receive further evidence; or return the matter to the m a g is tr a te judge with instructions. FE D R. CIV. P. 72(b)(3). De novo review in these circumstances requires at least a review of the e vid e n c e before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1 9 8 1 ). T h e Report and Recommendation concludes that both defendants are indisputably e n title d to immunity. In particular, the Report and Recommendation concludes that Defendant C a s e No. 1:08-CV-328 H o n . Robert J. Jonker

C h ie f Probation Officer Hoogstra is entitled to quasi-judicial immunity for any alleged errors in p r e p a r a tio n of a pre-sentence report involving Plaintiff, and that Defendant 56-A District Court is entitled to Eleventh Amendment sovereign immunity. The Court has reviewed de novo the c la im s and evidence presented to Magistrate Judge Brenneman; the Report and

R e c o m m e n d a tio n itself; and Plaintiff's objections. After its review, the Court finds Magistrate J u d ge Brenneman's Report and Recommendation to be both factually sound and legally correct. P l a in tif f' s only objection to the Report and Recommendation is that Defendant Hoogstra is not immune because she allegedly failed to interview him face-to-face for the pre-sentence re p o rt, and because she allegedly included false information in the report. These objections do n o t undercut the quasi-judicial immunity to which Defendant Hoogstra is entitled in preparing a p re -se n te n c e report. The Report and Recommendation recites the authority establishing this im m u n ity and nothing in Plaintiff's objections even addresses this authority. Plaintiff does not d ire c tly contest the Magistrate Judge's conclusion that the 56-A District Court of the State of M ic h iga n is entitled to Eleventh Amendment sovereign immunity, and the Court discerns no b a s is for any proper objection to application of sovereign immunity in any event. A C C O R D I N G L Y , IT IS ORDERED that the Report and Recommendation of the M a g is tr a te Judge is APPROVED AND ADOPTED as the opinion of the Court. I T IS FURTHER ORDERED that Plaintiff's complaint is DISMISSED WITH P R E J U D I C E under 28 U.S.C. § 1915(e)(2) on grounds of immunity. The Court finds no g o o d -f a ith basis for appeal within the meaning of 28 U.S.C. § 1915(a)(3).

D a te d :

September 3, 2008

/s/ Robert J. Jonker ROBERT J. JONKER U N IT E D STATES DISTRICT JUDGE 2