Spurlock v. Fuller et al

Filing 37

ORDER ADOPTING REPORT AND RECOMMENDATION 33 , denying 28 , granting 23 ; signed by District Judge Paul L. Maloney (Judge Paul L. Maloney, cmc)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Clarence Spurlock,
Plaintiff,
-vRichard Fuller, et al,
Defendant.

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No. 1:16-cv-1304
HONORABLE PAUL L. MALONEY

ORDER
This matter is before the Court on Plaintiff’s objection to Magistrate Judge Ellen
Carmony’s Report and Recommendation concerning Defendants’ motion to dismiss, and
Plaintiff’s motion to dismiss, and Plaintiff’s request for an evidentiary hearing. (ECF No. 34.)
On November 7, 2016, Plaintiff Clarence Spurlock initiated the present action, under
42 U.S.C. § 1983, against Defendants Richard Fuller, the Kalamazoo County Sheriff,
unnamed Defendant Copeland, an accountant for Kalamazoo County, Dr. Jack Hunt, a
pharmacist in Kalamazoo, and three other unnamed defendants. (ECF No. 1.)
On December 13, 2016, Plaintiff’s claims against the unnamed Defendants were
dismissed. (ECF No. 14.) On January 3, 2017, Defendants Fuller and Copeland filed a
motion to dismiss under Fed. R. Civ. P. 12(b)(6). (ECF No. 23.) Plaintiff responded by filing
a competing “motion to dismiss” on January 11, 2017. (ECF No. 28.) The matter was
referred to the Magistrate Judge, who entered a Report and Recommendation on May 19,
2017, recommending that “Defendants Fuller and Copeland’s motion be granted, Plaintiff’s
motion denied, Plaintiff’s claims against Defendant Hunt be dismissed, and this action
terminated.” (ECF No. 33 at PageID.130) (emphasis in original).

Statement of Facts
Plaintiff takes no issue with the facts that the Magistrate Judge lays out. Since Plaintiff
only lodges objections against the legal findings of the Magistrate Judge, the Court adopts the
Magistrate Judge’s summary of the allegations contained in the Complaint. (ECF No. 33.)
Legal Framework
With respect to a dispositive motion, a magistrate judge issues a report and
recommendation, rather than an order. After being served with a report and
recommendation (R&R) issued by a magistrate judge, a party has fourteen days to file written
objections to the proposed findings and recommendations. 28 U.S.C. § 636(b)(1); Fed. R.
Civ. P. 72(b). A district court judge reviews de novo the portions of the R&R to which
objections have been filed. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Only those objections that are specific are entitled to a de novo review under the
statute. Mira v. Marshall, 806 F.2d 636, 637 (6th Cir. 1986) (per curiam) (holding the district
court need not provide de novo review where the objections are frivolous, conclusive or too
general because the burden is on the parties to “pinpoint those portions of the magistrate’s
report that the district court must specifically consider”). Failure to file an objection results
in a waiver of the issue and the issue cannot be appealed. United States v. Sullivan, 431 F.3d
976, 984 (6th Cir. 2005); see also Thomas v. Arn, 474 U.S. 140, 155 (upholding the Sixth
Circuit’s practice). The district court judge may accept, reject, or modify, in whole or in part,
the findings or recommendations made by the magistrate judge. 28 U.S.C. § 636(b)(1); Fed.
R. Civ. P. 72(b).

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Analysis
Plaintiff’s objection lacks clarity, specificity, and development. While he blanketly
asserts that the Magistrate Judge “abused her discretion,” he fails to advance any substantive
argument as to how the recommendation was contrary to law, or point to any legal deficiency
in the reasoning of the Magistrate Judge. (ECF No. 34 at PageID.140–141.)
“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developing argumentation, are deemed waived. It is not sufficient for a party to mention a
possible argument in the most skeletal way, leaving the court to . . . put flesh on its bones.”

Citizens Awareness Network, Inc. v. United States Nuclear Regulatory Comm’n, 59 F.3d
284, 293–94 (1st Cir. 1995); accord McPherson v. Kelsey, 125 F.3d 989, 995–96 (6th Cir.
1997). Plaintiff has failed to “pinpoint those portions of the magistrate’s report that the
district court must specifically consider,” Mira, 806 F.2d at 637, and he has further failed to
develop any argumentation. In his objection, as just one example, Plaintiff baldly states:
Plaintiff again assert [sic] that this court abuse [sic] its discretion in his [sic]
Report and Recommendation when it state [sic] that Plaintiff sue [sic] lacks an
arguable basis either in law or in fact Neitzke v Williams 490 U.S. 319, 325
(1989). Clearly Plaintiff has a Constitutional issue when he allege [sic] that his
Property/Money was removed out of his account with Due Process of Law, or
Notice that, Fuller and Copeland had the authority to do.
(ECF No. 34 at PageID.141.)
This argument contains no “flesh on its bones.” Citizens Awareness Network, 59 F.3d
at 294. The Report and Recommendation explained how Plaintiff had failed to state a claim
with respect to the money because, among other failings, he failed to “demonstrate the
inadequacy of Michigan’s post deprivation procedures . . . .” (ECF No. 33 at PageID.136
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(citing Stackhouse v. McDonald, 2008 WL 108877, at *4 (W.D. Mich. Jan. 7, 2008)).)
Plaintiff does not explain how this line (or for that matter, other lines) of case law should not
apply to his allegations.
The remainder of Plaintiff’s objections follow the same pattern—merely baldly
repeating his bald allegations and just as baldly asserting that the Magistrate Judge’s
recommendation was contrary to law. (See, e.g., ECF No. 34 at PageID.140 (“In Plaintiff
[sic] Motion for Dismissal he articulate and [sic] Constitution question that his
Money/Property was removed from his account without Due Process of law. This Court
should have granted the plaintiff [sic] Motion to Dismiss on those Ground [sic].”).)
Other objections simply lack any coherence or development. (See, e.g., id. at
PageID.141 (Objection as to “Defendant Hunt”) (“Plaintiff is proceeding in pauper [sic],
because he in [sic] a Lawman, if the court concerted [sic] this proceeding as frivolous and
malicious, or that Plaintiff has failed to state a claim upon which relief can be granted, just
because Plaintiff is a Lawman, then clearly the court has abuse [sic] its discretion, in this
Report and Recommendation.”).)
Therefore, Plaintiff’s OBJECTIONS are OVERRULED, (ECF No. 34), Plaintiff’s
request for an evidentiary hearing is DENIED, id., and the Magistrate Judge’s Report and
Recommendation is ADOPTED in full. (ECF No. 33.) Plaintiff’s motion to dismiss is
DENIED (ECF No. 28), Defendants Fuller and Copeland’s motion to dismiss is
GRANTED (ECF No. 23), and Plaintiff’s claims against Defendant Hunt are DISMISSED.
(ECF No. 1.)

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The Court concurs with the Magistrate Judge’s recommendation that any appeal of
this matter would not be taken in good faith. See McGore v. Wrigglesworth, 114 F.3d 601,
611 (6th Cir. 1997); 28 U.S.C. § 1915(a)(3).
Judgment will enter separately.
IT IS SO ORDERED.
Date: June 13, 2017

/s/ Paul L. Maloney
Paul L. Maloney
United States District Judge

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