Donaldson v. United States Department of Health and Human Services et al

Filing 129

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 123 ; Defendants' Motions to Dismiss 18 20 and 33 are granted; Plaintiff's Motion for Preliminary Injunction 25 is denied; Plaintiff's Motion for Leave to File a Third Amended Complaint 81 is denied. This case is dismissed ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, ymc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MARK P. DONALDSON,
Plaintiff,
CASE NO. 1:14-CV-620
v.
HON. ROBERT J. JONKER
UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES,
et al.,
Defendants.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Brenneman’s Report and Recommendation in this
matter (docket # 123) and Plaintiff Donaldson’s Objections to the Report and Recommendation
(docket # 124). 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 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
Magistrate Judge Brenneman’s Report and Recommendation is factually sound and legally correct.
The Magistrate Judge recommends dismissing Plaintiff’s claims; denying Plaintiff’s motion
for primary jurisdiction; and denying Plaintiff’s motion to file a third amended complaint.
Plaintiff’s basic objection is his own boilerplate claim – asserted repeatedly – that the Magistrate
Judge did not construe Plaintiff’s pleadings liberally. Plaintiff is mistaken. Moreover, not even the
most liberal construction changes the fundamental point that Plaintiff does not articulate an injury
tied to the regulation he wants to challenge and does not articulate facts raising a plausible claim
against Defendant Strand. The Report and Recommendation carefully, thoroughly, and accurately
addresses Plaintiff’s claims and arguments. Nothing in Plaintiff’s Objections changes the analysis.
The Court agrees with the Magistrate Judge’s conclusions that dismissal is appropriate and that
Plaintiff’s motions for primary jurisdiction and for leave to file a third amended complaint lack
merit, for the very reasons the Report and Recommendation delineates.
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (docket # 123) is approved and adopted as the opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ Motions to Dismiss (docket ## 18, 20, and
33) are GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Primary Jurisdiction (docket
# 25) and Motion for Leave to File a Third Amended Complaint (docket # 81) are DENIED.
2

This case is DISMISSED.

Dated:

April 14, 2015

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

3