Young v. Bailey et al

Filing 54

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 49 , granting 41 ; the Court discerns no good-faith basis for appeal; this action is dismissed in its entirety ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

DAVID YWAIN YOUNG,
Plaintiff,
CASE NO. 1:10-cv-1064
v.
HON. ROBERT J. JONKER
UNKNOWN BAILEY, et al.,
Defendants.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Brenneman’s August 31, 2012 Report and
Recommendation in this matter (docket # 49) and Plaintiff Young’s Objection to the Report and
Recommendation (docket # 53). 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, 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 itself; and Plaintiff's objection. After its review, the Court finds that
Magistrate Judge Brenneman’s Report and Recommendation is factually sound and legally correct.
In his Report and Recommendation, Magistrate Judge Brenneman recommends summary
judgment in favor of Defendant Bailey, the sole remaining defendant in the case. Plaintiff failed
to contest Defendant Bailey’s motion for summary judgment.

In his objection, Plaintiff

acknowledges that he failed to oppose the motion, and he belatedly offers evidence he claims
establishes an issue of material fact. Plaintiff does not explain in any verified way why he failed
to respond to the motion for summary judgment and put the evidence before the Magistrate Judge
in the first instance. Moreover, even if Plaintiff had timely filed the evidence he submits with his
objection, the analysis would not change. Plaintiff offers disconnected bits of unexplained
documents but points to no specific evidence demonstrating a genuine issue of material fact. See
Emerson v. Novartis Pharm. Corp., 446 F. App’x 733, 736 (6th Cir. 2011)(“‘[J]udges are not like
pigs, hunting for truffles’ that might be buried in the record.”)(quoting United States v. Dunkel, 927
F.2d 955, 956 (7th Cir. 1991)); Wimbush v. Wyeth, 619 F.3d 632, 638 n. 4 (6th Cir. 2010)(stating
that a party must “point to the evidence with specificity and particularity . . . rather than just
dropping a pile of paper on the district judge’s desk and expecting him to sort it out.”). For the
reasons the Magistrate Judge articulates in the Report and Recommendation, Defendant Bailey is
entitled to summary judgment.
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (docket # 49) is approved and adopted as the opinion of the Court.

2

IT IS FURTHER ORDERED that Defendant Bailey’s Motion for Summary Judgment
(docket # 41) is GRANTED.
IT IS FURTHER ORDERED that for the same reasons that the Court dismisses the action,
the Court discerns no good-faith basis for an appeal within the meaning of 28 U.S.C. § 1915(a)(3).
See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997).
IT IS FURTHER ORDERED that this action is DISMISSED in its entirety.

Dated:

September 25, 2012

/s/ Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE

3