Love #304167 v. Mosley et al

Filing 61

ORDER MODIFYING AND ADOPTING REPORT AND RECOMMENDATION 40 , 45 , 27 , 23 , 12 ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, mil)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT ORLANDO LOVE,
Plaintiff,
CASE NO. 1:14cv281
v.
HON. ROBERT J. JONKER
SHANIEKA DEVONNE MOSLEY
and DAVID SHARP,
Defendant(s).
__________________________________/
ORDER MODIFYING AND APPROVING
REPORT AND RECOMMENDATION
This is a prisoner civil rights action alleging that Defendants violated Plaintiff’s
constitutional rights while he was on parole. Plaintiff alleges that Defendant Sharp used
excessive force against him. Defendant Sharp has moved for summary judgment (docket # 12)
and Plaintiff has responded with a motion to stay (docket # 23), a second amended complaint
(docket # 27), and a motion for leave to file a third amended complaint (docket # 40). Plaintiff
has also asserted constitutional claims against Defendant Mosley that are not at issue in the
Magistrate Judge’s Report and Recommendation. Defendants Michigan Department of
Corrections (“MDOC”) and the State of Michigan have not been served and the Magistrate
Judge recommends their dismissal, sua sponte, to which Plaintiff does not object.
The Court has reviewed the Report and Recommendation issued by the Magistrate
Judge in this matter (docket # 45) and Plaintiff's Objections to the Report and Recommendation
(docket # 49). 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 W RIGHT, 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 objections. After its review, the
Court finds that the Report and Recommendation is factually sound and legally correct. The
Court agrees with the conclusions stated by the Magistrate Judge. The Court does, however,
believe that Plaintiff must be given leave to amend his complaint and assert a Bivens claim
against Defendant Sharp.
In Objection No. 1, the Plaintiff primarily reiterates and expands arguments made in
his motion papers. Although it is undisputed that Mr. Sharp was an investigator for MDOC, it is
also undisputed that Mr. Sharp was, at the relevant times, a Special United States Deputy
Marshal. The United States Attorney for the Western District of Michigan has certified that Mr.
Sharp was acting within the scope of his federal detail. The Report and Recommendation
already carefully, thoroughly, and accurately addresses these arguments. The Court does,
however, agree with the Plaintiff that he should have the opportunity to amend his complaint to
bring a claim against Defendant Sharp pursuant to Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971). Defendant may then address any newly

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pleaded claim with appropriate motion practice. The Plaintiff shall have thirty days to file an
amended complaint, if he wishes.
In Objection No. 2, the Plaintiff requests that the Court consider his objections despite
a late filing after a motion for an extension of time (docket # 46) was denied (docket # 48). The
Court has considered the objections.
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (docket # 45) is adopted, with the proviso that Plaintiff may file an amended
complaint within 30 days that asserts a Bivens claim against Defendant Sharp.
IT IS FURTHER ORDERED that Plaintiff’s claims against Defendants MDOC and the
State of Michigan are DISMISSED pursuant to 28 U.S.C. §1915(e)(2)(B)(ii), for reasons recited
by the Magistrate Judge, to which Plaintiff has not objected.
IT IS FURTHER ORDERED that Plaintiff’s motion to stay (docket no. 23) is DENIED.
IT IS FURTHER ORDERED that Defendant Sharp’s combined motion to dismiss and
for summary judgment (docket no. 12) is GRANTED, subject to Plaintiff’s opportunity to file an
amended complaint within 30 days.
IT IS FURTHER ORDERED that Plaintiff’s second amended complaint (docket no. 27)
is STRICKEN, and Plaintiff’s motion for leave to file a third amended complaint (docket no. 40)
is DENIED as futile; provided, however, that Plaintiff may file an amended complaint asserting
a Bivens action against Defendant Sharp within 30 days.

/s/Robert J. Jonker
Robert J. Jonker
Chief United States District Judge
Dated: September 30, 2015

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