United States District Court, E.D. Michigan, Southern Division
WILLIAM E. POWELL, Plaintiff,
INTERNAL REVENUE SERVICE, Defendant.
Anthony P. Patti, United States Magistrate Judge
AND ORDER: (1) DENYING PLAINTIFF'S OBJECTIONS (ECF NO.
60); (2) ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
RECOMMENDATION (ECF NO. 55); (3) GRANTING DEFENDANT'S
MOTION FOR SUMMARY JUDGMENT (ECF NO. 45); AND (4) DISMISSING
THIS ACTION WITH PREJUDICE
D. BORMAN, UNITED STATES DISTRICT JUDGE
the Court is Plaintiff William E. Powell's Objections to
Magistrate Judge Anthony P. Patti's April 20, 2016 Report
and Recommendation. (ECF No. 55, Report and Recommendation.)
The Report and Recommendation recommended that this Court
grant Defendant Internal Revenue Service's January 20,
2016 Motion for Summary Judgment. (ECF No. 45.) Plaintiff
filed an Objection to the Report and Recommendation dated May
3, 2016 (ECF No. 56) and thereafter sought permission to
resubmit his objection with exhibits (ECF No. 57). Defendant
then filed a Response to Plaintiff's Objection. (ECF No.
58.) Thereafter, this Court granted Plaintiff's request
to resubmit his objection with exhibits (ECF No. 59) and
Plaintiff re-filed his objection with exhibits (ECF No. 60).
Defendant then filed a supplemental response to
Plaintiff's objection with exhibits (ECF No. 62) and
Plaintiff filed a reply (ECF No. 64).
Court reviews de novo the portions of a report and
recommendation to which objections have been filed. 28 U
.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Having conducted
a de novo review of the parts of the Magistrate
Judge's Report and Recommendation to which valid
objections have been filed pursuant to 28 U.S.C. §
636(b)(1), the Court will deny Plaintiff's objections,
adopt the Magistrate Judge's Report and Recommendation,
grant Defendant's motion for summary judgment, and
dismiss this action with prejudice.
March 19, 2015, Plaintiff filed this action against
Defendant. (ECF No. 1.) On April 28, 2015, this Court granted
Plaintiff's request to file an amended complaint. (ECF
No. 9.) This action second of three actions Plaintiff filed
against Defendant seeking to compel Defendant to comply with
his requests for certain tax documents pursuant to the
Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552. See Powell v. IRS (Powell I),
case no. 2:14-cv-12626 (E.D. Mich.) (judgment entered on
Sept. 9, 2015), and Powell v. IRS (Powell
III), case no. 2:15-cv-11616 (E.D. Mich.) (judgment
entered on Sept. 30, 2016). In the present action, Plaintiff
seeks documents related to a December 4, 2014 request for tax
documents and, as asserted in the amended complaint,
documents related to requests dated February 26, 2015, March
2, 2015, and April 10, 2015. (ECF No. 9, Am. Compl., at 2-8.)
filed the present motion for summary judgment on January 20,
2016. (ECF No. 29.) Defendant contended that summary judgment
should be granted because:
(1) [P]laintiff did not exhaust his administrative remedies
with respect to any of his denied requested Items;
(2) [P]laintiff did not follow the Service's FOIA
regulations for some of his requested Items;
(3) with respect to some of [P]laintiff's proper FOIA
requested Items, the Service conducted a reasonable search
but did not locate any responsive records, or
(4) if responsive records were located (and were not exempt
from disclosure under the FOIA) the Service properly released
those records to [P]laintiff.
(ECF No, 55, at *2, quoting ECF No. 45, at *9.)
detailed in this Court's contemporaneously filed opinion
and order denying Plaintiff's “Motion to Resubmit
Plaintiff's Opposition to Defendant's Motion for
Summary Judgment” (ECF No. 65, at *2-3) and in the
underlying Report and Recommendation (ECF No. 55, at *3),
Plaintiff failed to file a timely conforming response to
Defendant's Motion for Summary Judgment. Thus,
Defendant's motion for summary judgment was unopposed.
The Court notes, however, that the Magistrate Judge was
careful to acknowledge that “a district court cannot
grant summary judgment in favor of a movant simply because
the adverse party has not responded. The court is required,
at a minimum, to examine the movant's motion for summary
judgment to insure that he has discharged that burden.”
(ECF No. 55, at *4, quoting Carver v. Bunch, 946
F.2d 451, 455 (6th Cir. 1991)).
STANDARD OF REVIEW
to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. §
636(b)(1), the Court conducts a de novo review of
the portions of the Magistrate Judge's Report and
Recommendation to which a party has filed “specific
written objections” in a timely manner. Lyons v.
Comm'r Soc. Sec., 351 F.Supp.2d 659, 661 (E.D. Mich.
2004). 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). “The
parties have the duty to pinpoint those portions of the
magistrate's report that the district court must
specially consider.” Id. (internal quotation
marks and citation omitted). A general objection, or one that
merely restates the arguments previously presented, does not
sufficiently identify alleged errors on the part of the
magistrate judge. An “objection” that does