Cary #269436 v. Robinson et al

Filing 164

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 77 , 119 ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, sdb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

BRYAN ALLEN CARY #269436,
Plaintiff,
CASE NO. 1:13-cv-431
v.
HON. ROBERT J. JONKER
MARSHAUN ROBINSON, et al.,
Defendants.
__________________________________/
ORDER APPROVING REPORT AND RECOMMENDATION
The Court has reviewed the Magistrate Judge’s Report and Recommendation (ECF No. 119)
recommending: 1) denying Plaintiff’s motion for partial summary judgment (ECF No. 77); and 2)
declining to exercise supplemental jurisdiction over Plaintiff’s state law claim for ethnic
intimidation, therefore dismissing that claim. 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 must determine de novo any part of the magistrate judge’s
disposition that has been properly objected to. The district judge may accept, reject,
or modify the recommended disposition; receive further evidence; or return the
matter to the magistrate judge with instructions.
FED. R. CIV. P. 72(b)(3); see also 28 U.S.C. § 636(b)(1)(C). 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). After de novo review in this case, the Court concludes that the Report

and Recommendation is legally sound and factually correct, and the Court therefore adopts it as its
decision.
Plaintiff has a “main concern” with the recommendation on the ethnic intimidation claim,
which Plaintiff proceeds to discuss the merits of. (ECF No. 123, PageID.610-611). However, the
Court is not resolving the merits of the ethnic intimidation claim under Michigan law because the
Court is declining to exercise supplemental jurisdiction over that state-law claim. The claim under
M.C.L. § 750.147b raises novel and complex issues of state law, and the Court has discretion
whether to retain that claim or dismiss it. 28 U.S.C. § 1367(c)(1). The Court dismisses the claim, but
notes that it does so without prejudice, leaving the Plaintiff free to pursue that claim in an
appropriate venue.
IT IS THEREFORE ORDERED that:
•

The Report and Recommendation of the Magistrate Judge (ECF No. 119) is approved and
adopted as the opinion of this Court.

•

Plaintiff’s motion for partial summary judgment (ECF No. 77) is DENIED.

•

Plaintiff’s claim for ethnic intimidation under state law is DISMISSED WITHOUT
PREJUDICE, as the Court declines to exercise supplemental jurisdiction over it.
IT IS SO ORDERED.

Dated:

August 12, 2016

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