LaFountain #171248 v. Harry et al
ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 68 ; Plaintiff's motion to defer summary judgment proceedings 59 is GRANTED; Defendants' motion for summary judgment 57 is DENIED without prejudice; Plaintiff's motion for l eave to file an enlarged brief 64 is DENIED; Plaintiff's motion for substitute service 53 is GRANTED IN PART AND DENIED IN PART; Plaintiff's motion for an amended CMO 63 is GRANTED, and the Magistrate Judge is instructed to prepare one consistent with this ruling; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
WAYNE LAFOUNTAIN #171248,
CASE NO. 1:10cv943
HON. ROBERT J. JONKER
SHIRLEE HARRY, et al.,
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
This is a prisoner civil rights action alleging unconstitutional retaliatory actions by
Defendants. Defendants moved for summary judgment, and Plaintiff opposed the motion arguing,
among other things, that he needed additional discovery opportunity. The Magistrate Judge
recommends denying the motion for summary judgment, without prejudice, and granting Plaintiff
the opportunity for certain additional discovery (docket # 68). Both sides object to the Report and
Recommendation (docket ## 69-70).1
Under the Federal Rules of Civil Procedure, where, as here, a party has objected to portions
of a Report and Recommendation, “[t]he district judge . . . has a duty to reject the magistrate judge’s
recommendation unless, on de novo reconsideration, he or she finds it justified.” 12 WRIGHT,
The motions before the Court could be considered not dispositive and the actions of the
Magistrate Judge reviewed under the clearly erroneous standard of 28 U.S.C. § 636(b)(1)(A).
Instead, the Court reviews the record de novo under the standard for dispositve motions in Fed. R.
Civ. P. 72(b).
MILLER, & MARCUS, FEDERAL PRACTICE AND PROCEDURE § 3070.2, at 381 (2d ed. 1997).
Specifically, the Rules provide that:
The district judge to whom the case is assigned shall make a de novo
determination upon the record, or after additional evidence, of any
portion of the magistrate judge's disposition to which specific written
objection has been made in accordance with this rule. The district
judge may accept, reject, or modify the recommended decision,
receive further evidence, or recommit the matter to the magistrate
judge with instructions.
FED R. CIV. P. 72(b). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).
The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge;
the Report and Recommendation (“R & R”) itself; and objections from the Plaintiff and Defendants.
The Court finds the R & R factually sound and legally correct, and therefore adopts the R & R.
Plaintiff’s only objection is to the portion of the R & R denying marshal service of subpoenas on the
party witnesses, but as the R & R notes, Plaintiff has plenty of discovery options against party
witnesses short of marshal-served subpoenas. Defendants object that there is no need for a new
discovery period, but the Court agrees with the Magistrate Judge that Plaintiff has articulated a
legitimate basis for the opportunity to seek additional discovery.
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (docket # 68) is approved and adopted as the opinion of the Court.
IT IS FURTHER ORDERED that Plaintiff’s motion to defer summary judgment
proceedings (docket # 59) is GRANTED, and Defendants’ motion for summary judgment (docket
# 57) is DENIED without prejudice.
IT IS FURTHER ORDERED that Plaintiff’s motion for leave to file an enlarged brief in
response to defendants’ motion for summary judgment (docket # 64) is DENIED and Plaintiff’s
motion for substitute service (docket # 53) is GRANTED only as to the subpoena addressed to nonparty MDOC Director Heyns, but DENIED in all other respects. The Clerk’s Office is directed to
re-issue the subpoena and forward it to the United States Marshals Service for service under 28
U.S.C. § 1915(d).
IT IS FURTHER ORDERED that Plaintiff’s motion for an amended case management
order (docket # 63) is GRANTED, and the Magistrate Judge is instructed to prepare one consistent
with this ruling.
September 30, 2015
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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