United States District Court, E.D. Michigan, Northern Division
MARK P. DONALDSON, Plaintiff,
AUSABLE TOWNSHIP, et al Defendant.
Patricia T. Morris Magistrate Judge
ORDER OVERRULING OBJECTIONS IN PART, ADOPTING REPORT
AND RECOMMENDATION IN PART, GRANTING MOTION TO DISMISS,
DISMISSING COUNTS XV AND XVI OF PLAINTIFF'S AMENDED
COMPLAINT, GRANTING MOTION TO SEVER AND REMAND, DENYING ALL
OTHER MOTIONS, AND REMANDING TO STATE COURT
L. LUDINGTON United States District Judge
January 20, 2016, Plaintiff Mark P. Donaldson filed suit in
Roscommon County Circuit Court against Defendants Au Sable
Township, Joe Meadows, and Mark Smith. ECF No. 1. This case
was removed on April 29, 2016. Donaldson's initial
complaint brought eleven state law claims related to
violations of the Michigan Freedom of Information Act.
However, Donaldson filed an amended complaint on April 8,
2016. That first amended complaint included allegations that
Defendants' conduct violated the Fourteenth Amendment. On
the basis of those allegations, Defendants removed the case.
ECF No. 1.
5, 2016, Defendants filed a motion to dismiss Counts 13, 14,
and 15 of Donaldson's first amended complaint. ECF No.
Several days later, all pretrial matters in this case,
including that motion, were referred to Magistrate Judge
Patricia T. Morris. ECF No. 6. On May 18, 2016, Donaldson
filed a “Motion for Immediate Consideration, ”
ECF No. 9, seeking reconsideration of a previous order which
directed Donaldson to reply to the Defendants' motion to
dismiss by May 24. On May 26, 2016, Donaldson filed a motion
requesting that the Court sever his state law claims and
remand them to state court. ECF No. 12. He also filed a
second amended complaint pursuant to Federal Rule of Civil
Procedure 15(a)(1)(B). ECF No 13. In the introduction to that
second amended complaint, Donaldson alleges that Defendants
erected “roadblocks to a resident of AuSable Township,
” repeatedly violated the Michigan Freedom of
Information Act, Mich. Comp. L. § 15.231, repeatedly
violated the Michigan Open Meetings Act, Mich. Comp. L.
§ 15.261, violated Donaldson's due process and civil
rights under the Fourteenth Amendment, and failed to enforce
a local zoning ordinance. Sec. Am. Compl. at 2.
16, 2016, Defendants filed a motion to dismiss Counts XI,
XII, XIII, XIV, XV, XVI, and XVII of the second amended
complaint. ECF No. 20. Two weeks later, Donaldson filed a
motion seeking an order requiring the Defendants to produce a
copy of all records from the state court proceeding and
extending the deadline for Donaldson to reply to
Defendants' motion to dismiss. ECF No. 23. At the same
time, Donaldson filed a motion for sanctions against
Defendants, asserting that Defendants falsely represented to
the Court that they had sought concurrence before filing
their motion to dismiss. ECF No. 24. On July 25, 2016,
Donaldson filed two more motions. In the first motion,
Donaldson requested that Judge Morris issue a scheduling
order and institute a discovery plan. ECF No. 31. In the
second motion, Donaldson sought leave to file a third amended
complaint. ECF No. 32.
August 26, 2016, Judge Morris issued a report recommending
that Defendants' second motion to dismiss be granted,
Donaldson's federal constitutional claims be dismissed
with prejudice, his state law claims be dismissed without
prejudice, and that all his other pending motions be denied
as moot. ECF No. 35. Donaldson filed nineteen objections to
Judge Morris's report and recommendation on September 8,
2016. For the reasons stated below, Donaldson has not stated
a claim arising out of federal law. Accordingly, his federal
claims will be dismissed and his state claims will be
to Federal Rule of Civil Procedure 72, a party may object to
and seek review of a magistrate judge's report and
recommendation. See Fed. R. Civ. P. 72(b)(2).
Objections must be stated with specificity. Thomas v.
Arn, 474 U.S. 140, 151 (1985) (citation omitted). If
objections are made, “[t]he district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to.”
Fed.R.Civ.P. 72(b)(3). De novo review requires at least a
review of the evidence before the magistrate judge; the Court
may not act solely on the basis of a magistrate judge's
report and recommendation. See Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). After reviewing the
evidence, the Court is free to accept, reject, or modify the
findings or recommendations of the magistrate judge. See
Lardie v. Birkett, 221 F.Supp.2d 806, 807 (E.D. Mich.
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.
See VanDiver v. Martin, 304 F.Supp.2d 934, 937 (E.D.
Mich. 2004). An “objection” that does nothing
more than disagree with a magistrate judge's
determination, “without explaining the source of the
error, ” is not considered a valid objection.
Howard v. Sec'y of Health and Human Servs., 932
F.2d 505, 509 (6th Cir. 1991). Without specific objections,
“[t]he functions of the district court are effectively
duplicated as both the magistrate and the district court
perform identical tasks. This duplication of time and effort
wastes judicial resources rather than saving them, and runs
contrary to the purposes of the Magistrate's Act.”
report and recommendation, Judge Morris concludes that
Donaldson has not alleged any cognizable federal claims.
Accordingly, Judge Morris recommends dismissing those counts
and dismissing without prejudice Donaldson's state law
claims. In response, Donaldson has filed nineteen objections.
Objections, ECF No. 40. They can be summarized as follows: In
several objections, he asserts that Judge Morris
mischaracterized standards to be applied to Donaldson's
complaint or the motions he has filed. He similarly contends
that Judge Morris made “[n]o findings of facts.”
Objections at 6-7. He argues that Judge Morris should have
remanded his state claims (not dismissed them without
prejudice), and argues that his motion for sanctions should
have been separately addressed. Donaldson faults Judge Morris
for her analysis of his motion to file a third amended
complaint. He further objects to this Court's denial of
his motion for a page extension for objections. Donaldson
also requests that, if the case is rejected and sent back to
a magistrate judge, Judge Morris not be assigned to the case.
Finally, and most importantly, Donaldson asserts in
objections ten through seventeen that Judge Morris improperly
analyzed his federal claims.
than addressing each of Donaldson's objections to Judge
Morris's analysis of his federal claims individually,
those claims will be analyzed anew. Donaldson's second
amended complaint contains two federal claims. In Count XV,
Donaldson argues that his Fourteenth Amendment procedural due
process rights were violated by Defendants. Sec. Am. Compl.
at 41, ECF No. 13. Donaldson explains that he “filed a
zoning complaint with the Township” that challenged a
sign with “moving illumination” which had been
placed on Sunset Drive. Id. Donaldson lives in the
Running Deer Estates subdivision, which is only accessible
through County Road 603 (also known as Sunset Drive). In
Count XV, Donaldson also references exhibits 26, 27, and 28
of his second amended complaint. Id. Those exhibits
reveal that Donaldson was asserting that a nearby firearms
range and several related billboards were in violation of
local zoning ordinances. According to Donaldson's
complaints, the Township Board took no action on these
complaints or related FOIA requests because Donaldson had not
paid the bill for prior FOIA requests he has made.
Id. at 43.
Count XVI, Donaldson again alleges that Defendants violated
his Fourteenth Amendment procedural due process rights.
Id. at 44. In this claim, he argues that the
Defendants had “developed and/or state personal
bias” regarding his zoning complaint. He also asserts
that, based on existing zoning ordinances, his complaint
revealed that the firing range and billboards in question
were noncompliant. He also alleges that he has a First
Amendment right “to speak at the public meeting”
in challenge to the billboard he believes should be removed.
motion to file a third amended complaint, Donaldson attached
a copy of the proposed complaint. The proposed third amended
complaint contains an additional count and defendant.
Specifically, Donaldson alleges in Count XVIII that
“Kathy Wray Intentionally Violated ...