Ross #204607 v. Dominguez-Bem et al
ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 56 ; Defendant's Motion for Summary Judgement 44 is granted; Plaintiff's state law claim for gross negligence is dismissed for lack of jurisdiction; the Court discerns no good-faith basis for appeal ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
CASE NO. 1:15-CV-218
HON. ROBERT J. JONKER
VICTOR L. DOMINGUEZ-BEM and
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Kent’s Report and Recommendation in this matter
(ECF No. 56), Plaintiff’s Objection to the Report and Recommendation (ECF No. 57), and
Defendants’ Response to Objection (ECF No. 58). 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:
[t]he 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
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; Plaintiff's objections; and Defendants’ response. After its
review, the Court finds that Magistrate Judge Kent’s Report and Recommendation is factually
sound and legally correct.
The Magistrate Judge recommends granting Defendants’s Motion for Summary Judgment
(ECF No. 44). Fundamentally, Plaintiff claims that Dr. Dominguez-Bem’s termination of
Plaintiff’s use of a cervical collar amounts to deliberate indifference, because a specialist,
Dr. Rawal, had instructed staff at Duane Waters Hospital that Plaintiff should wear the cervical
collar longer. The Magistrate Judge properly determined that at most, Plaintiff’s claim against
Dr. Dominguez-Bem reflects a disagreement between physicians, not deliberate indifference. (ECF
No. 56, PageID.497.) In his Objection, Plaintiff primarily reiterates and expands arguments he
presented in his motion papers. The Report and Recommendation already carefully, thoroughly,
and accurately addresses these arguments. Plaintiff also directs the Court’s attention to cases in
which other courts found deliberate indifference where medical providers ignored or contravened
specialists’ directives. The cases Plaintiff cites are readily distinguishable and do not affect the
analysis here. The Court agrees with the Magistrate Judge’s conclusion that Defendants are entitled
to the relief they seek, for the very reasons the Report and Recommendation delineates.
Plaintiff also objects that the Report and Recommendation fails to address what Plaintiff
describes as a state law claim for gross negligence. To the extent Plaintiff brings a state law claim,
the Court declines to exercise supplemental jurisdiction. 28 U.S.C. § 1367(c)(3).
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (ECF No. 56) is approved and adopted as the opinion of the Court.
IT IS FURTHER ORDERED that Defendants’ Motion for Summary Judgment (ECF No.
44) is GRANTED.
IT IS FURTHER ORDERED that to the extent Plaintiff brings a state law claim for gross
negligence, the claim is DISMISSED for lack of jurisdiction.
IT IS FURTHER ORDERED that for the same reasons that the Court dismisses the action,
the Court discerns no good-faith basis for an appeal within the meaning of 28 U.S.C. § 1915(a)(3).
See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997).
This case is DISMISSED.
March 8, 2017
/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE
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