Ross #204607 v. Duby et al

Filing 37

ORDER ADOPTING REPORT AND RECOMMENDATION 34 ; granting Defendants' motion for summary judgment 25 ; signed by Chief Judge Paul L. Maloney (Chief Judge Paul L. Maloney, kw)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
BRADFORD ROSS, #204607,
Plaintiff,

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-v)
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PAUL DUBY, et al.,
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Defendants.
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____________________________________)

No. 1:10-cv-1083
HONORABLE PAUL L. MALONEY

ORDER ADOPTING REPORT AND RECOMMENDATION
Plaintiff Bradford Ross, a prisoner under the control of the Michigan Department of
Corrections (“MDOC”), filed suit under 42 U.S.C. § 1983 alleging violations of his rights under the
First Amendment. Defendants filed a motion for summary judgment. (ECF No. 25.) The magistrate
judge reviewed the record, and issued a report recommending the motion be granted and all of the
remaining claims be dismissed. (ECF No. 34.) Ross timely filed an objection. (ECF No. 35.)
A district court judge reviews de novo the portions of the report and recommendation
(“R&R”) to which objections have been filed. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). Only
those objections that are specific are entitled to a de novo review under the statute. Mira v.
Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam) (holding the district court need not provide
de novo review where the objections are frivolous, conclusive or too general because the burden is
on the parties to “pinpoint those portions of the magistrate’s report that the district court must
specifically consider”). The United States Supreme Court has held that the statute does not
“positively require[] some lesser review by the district court when no objections are filed.” Thomas
v. Arn, 474 U.S. 140, 150 (1985). Failure to file an objection results in a waiver of the issue and the
issue cannot be appealed. United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005); see also Arn,

474 U.S. at 155 (upholding the Sixth Circuit’s practice). The district court judge may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate judge. 28
U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
The magistrate judge concluded, on the basis of the record, Ross did not put forth sufficient
evidence to create a genuine issue of material fact on either element of the religious basis for his Free
Exercise claim. (R&R 5 PgID 210.) Ross’s objection does not address both reasons for the
magistrate judge’s recommendation. The record contains insufficient evidence to create a genuine
issue of material fact that Ross’s asserted beliefs are religious in his own scheme. When
interviewing Ross, Duby concluded that Ross had little knowledge of Judaism. This conclusion
undermines the religious connection between Ross’s demand for a kosher meal and his beliefs. The
record also contains insufficient evidence to create a genuine issue of material fact on the second
element, that Ross’s religious beliefs were sincerely held. Even if Ross’s objections create a genuine
issue of material fact on one of the elements, the lack of a genuine issue on the other provides a
sufficient basis for granting the motion.
Therefore, the report and recommendation is ADOPTED, over objections, as the opinion of
this Court. Defendants’ motion for summary judgment is GRANTED. Ross’s claims against
Defendants are DISMISSED WITH PREJUDICE. IT IS SO ORDERED.

Date:

September 26, 2012

/s/ Paul L. Maloney
Paul L. Maloney
Chief United States District Judge

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