Love #304167 v. Mosley et al

Filing 86

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 81 subject to the limitations noted in this order; Plaintiff's motion for summary judgment against Defendant Mosley 59 is denied; Plaintiff's motion to strike 78 is denied; Plaintiff's claims against Defendant Sharp are dismissed; Plaintiff's claim against Defendant Mosley under section 1983 will proceed; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
ROBERT ORLANDO LOVE,
Plaintiff,
CASE NO. 1:14-cv-281
v.
HON. ROBERT J. JONKER
SHANIEKA DEVONNE MOSLEY
and DAVID SHARP,
Defendants.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Kent’s Report and Recommendation in this matter
(ECF No. 81) and Defendant Sharp’s Objection to the Report and Recommendation (ECF No. 84).
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). 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 Defendant’s objection. After its review, the Court finds
that Magistrate Judge Kent’s Report and Recommendation is factually sound and legally correct.
The Magistrate Judge recommends: (1) denying Plaintiff’s motion to for summary judgment
against Defendant Mosley; (2) denying Plaintiff’s motion to strike; and (3) dismissing Plaintiff’s
claims against Defendant Sharp. In the alternative to dismissing Plaintiff’s claims against Sharp,
the Magistrate Judge recommends that Plaintiff file a fifth amended complaint limited to: (1) his
Eighth Amendment (sexual victimization) claim against Defendant Mosley under § 1983 and (2)
his Eight Amendment (excessive force) claim against Defendant Sharp under Bivens. Plaintiff has
not filed any objections. Defendant Sharp objects to the alternative recommendation on the basis
that Plaintiff’s claims against him arise under the Fourth Amendment, not the Eighth Amendment,
and Plaintiff has failed to comply with the Court’s previous order to file an amended complaint.
For purposes of the Magistrate Judge’s Report and Recommendation, the Court sees no
difference in result under either an Eighth Amendment or Fourth Amendment analysis, and so the
Court takes no position at this time on which standard applies. Defendant Sharp should prevail
under either standard. Moreover, the Court intends to adopt dismissal, rather than the alternative
suggestion of amendment, thus mooting the balance of Sharp’s objection.
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (ECF No. 81) is approved and adopted as the opinion of the Court, subject to the
limitations noted above.
IT IS FURTHER ORDERED that Plaintiff Love’s motion for summary judgment against
Defendant Mosley (ECF No. 59) is DENIED.
IT IS FURTHER ORDERED that Plaintiff Love’s motion to strike (ECF No. 78) is
DENIED.
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IT IS FURTHER ORDERED that Plaintiff Love’s claims against Defendant Sharp are
DISMISSED.
The Court will proceed with Plaintiff’s claim against Defendant Mosley under § 1983.
IT IS SO ORDERED.

Dated:

October 18, 2016

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

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