Mills #208720 v. Caruso et al

Filing 66

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 61 , dismissing Plaintiff's claims against Defendant Caruso for failure to state a claim. Plaintiff's claims against the remaining defendants are dismissed without prejudice for failure to achieve service of process ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
VESTER MILLS,
Plaintiff,
Case No. 1:09-cv-249
v.
HON. ROBERT HOLMES BELL
PATRICIA CARUSO,
Respondent.
/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
On September 30, 2011, Magistrate Judge Joseph G. Scoville issued a Report and
Recommendation (“R&R”) recommending that Plaintiff’s claims against Caruso be
dismissed under 28 U.S.C. § 1915A(b), and that Plaintiff’s claims against all other
defendants be dismissed without prejudice for failure to achieve service of process. (Dkt.
No. 61.)
This Court makes a de novo determination of those portions of an R&R to which
specific objections are made. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). “[A] general
objection to a magistrate’s report, which fails to specify the issues of contention, does not
satisfy the requirement that an objection be filed. The objections must be clear enough to
enable the district court to discern those issues that are dispositive and contentious.” Miller
v. Currie, 50 F.3d 373, 380 (6th Cir. 1995). The Court may accept, reject, or modify any or
all of the Magistrate Judge’s findings or recommendations. Id.

Plaintiff objects to the Magistrate Judge’s recommendation of dismissal as to
Defendant Caruso under 28 U.S.C. § 1915A(b). Plaintiff’s only basis for objection is that
Defendant Caruso should be held accountable for allowing the actions of subordinates.
However, the Court agrees with the Magistrate Judge’s determination that Plaintiff has not
alleged facts sufficient to state a claim upon which relief may be granted. As noted in the
R&R, supervisory officers are not liable under 42 U.S.C. § 1983 under a theory of
respondeat superior.
Plaintiff makes no specific objection to the Magistrate Judge’s recommendation that
his claims against the remaining defendants should be dismissed without prejudice for failure
to achieve service of process. Plaintiff merely states that he made errors, and argues that
dismissal is a harsh result. However, the record shows that Plaintiff was given an extension
of time to achieve service of process, and that he was aware of the relevant rules.
Additionally, the harshness of dismissal is mitigated by the Magistrate Judge’s
recommendation that the claims be dismissed without prejudice. The Court agrees that this
is the correct result. Accordingly,
IT IS HEREBY ORDERED that the September 30, 2011, R&R (Dkt. No. 61) is
APPROVED and ADOPTED as the opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s claims against Defendant Caruso are
DISMISSED under 28 U.S.C. 1915A(b) for failure to state a claim upon which relief may
be granted.

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IT IS FURTHER ORDERED that Plaintiff’s claims against the remaining
defendants are DISMISSED WITHOUT PREJUDICE for failure to achieve service of
process.

Dated: March 9, 2012

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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