Zimmermann #695270 v. Michigan Department of Corrections et al

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATION 23 re 16 : Defendants' Motion 16 for Summary Judgment is GRANTED and Defendants Arkesteyn, Hegensbach, Pratt & the Michigan Department of Corrections are dismissed; signed by Judge Gordon J. Quist (Judge Gordon J. Quist, jmt)

Zimmermann #695270 v. Michigan Department of Corrections et al

Doc. 31

UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
_______________________

JAMES ZIMMERMANN,
Plaintiff,
Case No. 1:12-CV-751
v.
HON. GORDON J. QUIST
MICHIGAN DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.
_____________________________/

ORDER ADOPTING REPORT AND RECOMMENDATION
On July 3, 2013, Magistrate Judge Hugh W. Brenneman issued a Report and
Recommendation (R & R) (docket no. 23) recommending that this Court grant summary judgment
in favor of Defendants Arkesteyn, Hegensbach, Pratt & the Michigan Department of Corrections
(“Defendants”). Zimmermann has filed a timely Objection to the R & R. When a party properly
objects to any part of a magistrate judge’s proposed disposition, this Court must review the
disposition de novo. Fed. R. Civ. P. 72(b)(3). After conducting a de novo review of the R & R,
Zimmermann’s Objection, and the pertinent portions of the record, the Court concludes that the R
& R should be adopted.
Zimmermann did not oppose Defendants’ motion for summary judgment. Defendants filed
their motion on December 18, 2012. Zimmermann had 28 days during which to respond to
Defendants’ motion. W.D.Mich. LCivR 7.2(c) (“Any party opposing a dispositive motion shall,
within twenty-eight (28) days after service of the motion, file a responsive brief and any supporting
materials.) Zimmermann did not file a response. Nonetheless, seven months later, Zimmermann
filed an Objection to the R & R raising his arguments in opposition to Defendants’ motion for
summary judgment.

Dockets.Justia.com

The Court declines to consider Zimmerman’s new arguments that he could have raised in
response to Defendants’ motion for summary judgment. It is well established that a party may not
raise an argument, advance a theory, or marshal evidence before a district judge that was not fairly
presented to the magistrate judge. In Murr v. United States, 200 F.3d 895 (6th Cir. 2000), the Sixth
Circuit held that a party is not permitted to raise a new argument, for the first time, in objection to
a Report and Recommendation, and that failure to raise the argument before the magistrate judge
constitutes a waiver. Id. at 902 n.1. “The Magistrate Act was not intended ‘to give litigants an
opportunity to run one version of their case past the magistrate, then another past the district court.’”
Jones-Bey v. Caruso, No. 1:07-cv-392, 2009 WL 3644801, at *1 (W.D. Mich. Oct. 30, 2009)
(internal quotation marks and citation omitted). Thus, in accordance with the practice of courts in
this district,1 the Court declines to consider Zimmermann’s arguments.
Seeing no other objections, the Court will adopt the R & R. Therefore,
IT IS HEREBY ORDERED that the magistrate judge’s Report and Recommendation
(docket no. 23) is ADOPTED as the Opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (docket
no. 16) is GRANTED. Defendants Arkesteyn, Hegensbach, Pratt & the Michigan Department
of Corrections are dismissed as parties to this case.
IT IS FURTHER ORDERED that Plaintiff’s Objection to the Report and
Recommendation (docket no. 27) is OVERRULED.

Dated: August 12, 2013

/s/ Gordon J. Quist
GORDON J. QUIST
UNITED STATES DISTRICT JUDGE

1

See, e.g., Marr v. Foy, No. 1:07-cv-908, 2010 W L 3061297, at *4–5 (W .D. Mich. Aug. 3, 2010) (Maloney,
C.J.); Wappler v. Huss, No. 1:08-cv-629, 2009 W L 3055202, at *1–2 (W .D. Mich. Sept. 18, 2009) (Neff., J.).

2