Simmerman et al v. Kheema et al

Filing 22

ORDER ADOPTING 21 REPORT AND RECOMMENDATION. Signed by Judge Mark S. Norris on 04/28/2021. (Norris, Mark)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
______________________________________________________________________________
DR. STEVEN CRAIG SIMMERMAN and
HILDA COPENHAVER SIMMERMAN,
Plaintiffs,
v.

Case No. 2:19-cv-02833-MSN-cgc

JASON KHEEMA, JASON FORTNER,
and KYLE DAVIS,
Defendants.
______________________________________________________________________________
ORDER ADOPTING REPORT AND RECOMMENDATION
______________________________________________________________________________
Before the Court is the Magistrate Judge’s Report and Recommendation, (ECF No. 21),
entered on January 21, 2021. The Magistrate Judge’s Report recommends that this matter be
dismissed for failure to timely effect service. (Id. at PageID 80.) Plaintiffs have not filed any
objections to the Report. Accordingly, the Court ADOPTS the Report and Recommendation in
its entirety.
Background
Plaintiffs filed their pro se Complaint pursuant to 42 U.S.C. § 1983 on December 5, 2019.
(ECF No. 1.) Plaintiffs allege that the Defendants entered their property and took an electronic
device without a warrant. (Id. at PageID 2–3.) Summonses were issued for the Defendants on
December 18, 2019. (ECF No. 7.) There is no indication in the record that Plaintiffs have ever
effected service on Defendants in this matter.
On January 4, 2021, the Magistrate Judge entered an Order directing Plaintiffs to show
cause as to why this matter should not be dismissed for failure to timely effect service on

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Defendants. 1 (ECF No. 18 at PageID 74–75.) Plaintiffs filed separate responses on January 7 and
13, 2021. (ECF Nos. 19 and 20.)
On January 21, 2021, the Magistrate Judge entered her Report and Recommendation,
recommending that this matter be dismissed without prejudice for failure to effect service. (ECF
No. 21 at PageID 80.) The Report instructed Plaintiffs that they had fourteen (14) days to submit
their objections. (Id.) To date, they have not submitted any objections to the Report’s findings.
Standard of Review
Congress enacted 28 U.S.C. § 636 to relieve the burden on the federal judiciary by
permitting the assignment of district court duties to magistrate judges. See United States v. Curtis,
237 F.3d 598, 602 (6th Cir. 2001) (citing Gomez v. United States, 490 U.S. 858, 869–70 (1989));
see also Baker v. Peterson, 67 F. App’x 308, 310 (6th Cir. 2003). For dispositive matters, “[t]he
district judge must determine de novo any part of the magistrate judge’s disposition that has been
properly objected to.” See Fed. R. Civ. P. 72(b)(3); 28 U.S.C. §636(b)(1). After reviewing the
evidence, the court is free to accept, reject, or modify the magistrate judge’s proposed findings or
recommendations. 28 U.S.C. § 636(b)(1). The district court is not required to review—under a
de novo or any other standard—those aspects of the report and recommendation to which no
objection is made. See Thomas v. Arn, 474 U.S. 140, 150 (1985). The district court should adopt
the magistrate judge’s findings and rulings to which no specific objection is filed. See id. at 151.
Analysis
As mentioned above, Plaintiffs have not submitted their objections to the Report and
Recommendation.

This Court is not obligated to review any aspect of the Report and

1. Defendant Jason Kheema was dismissed from this matter on July 1, 2020. (ECF No.
17.)
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Recommendation to which no objection is made. See Thomas, 474 U.S. at 150. However, after
review, the Court agrees with the Report’s conclusion. Plaintiffs’ responses to the Magistrate
Judge’s Show Cause Order fail to detail any effort by them to effect service on the remaining
Defendants. Accordingly, the Court ADOPTS the Report and Recommendation.
Conclusion
For the reasons above, the Court ADOPTS the Report and Recommendation. The claims
against the remaining Defendants will be DISMISSED WITHOUT PREJUDICE.
IT IS SO ORDERED, this 28th day of April, 2021.
s/ Mark Norris
MARK S. NORRIS
UNITED STATES DISTRICT JUDGE

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