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Hoosier v. Liu

United States District Court, E.D. Michigan, Southern Division

June 6, 2017

DWAYNE HOOSIER, Plaintiff,
v.
WENDY LIU, et al., Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR RECONSIDERATION [# 44] AND ORDER ACCEPTING REPORT AND RECOMMENDATION [#40] TO GRANT THE CONSTRUED MOTION FOR PARTIAL SUMMARY JUDGMENT FILED BY DEFENDANTS WENDY LIU, N.P., SHI-YU TAN, M.D., RICKEY COLEMAN, M.D., AND STEVEN BERGMAN, M.D.; AND TO GRANT IN PART THE MOTION FOR SUMMARY JUDGMENT FILED BY DEFENDANTS VICKI CARLSON AND RENYU XUE

          HON. DENISE PAGE HOOD, Judge

         I. BACKGROUND

         On January 23, 2017, Magistrate Judge Anthony P. Patti filed a Report and Recommendation (Doc # 40) on a Partial Motion for Judgment on the Pleadings filed by Defendants Wendy Liu, Shi-Yu Tan, Rickey Coleman, and Steven Bergman (Doc # 26), and a Motion for Summary Judgment filed by Defendants Vicki Carlson and Renyu Xue (Doc # 35). On February 15, 2017, the Court entered an Order Accepting the Report and Recommendation. (Doc # 43) The Court noted that no objections to the Report and Recommendation had been filed, and that the time to file objections had passed. Id. at Pg ID 540.

         This matter is now before the Court on Plaintiff Dwayne Hoosier's Motion for Reconsideration filed pro se on March 7, 2017. (Doc # 44) Plaintiff argues that he did timely file objections pursuant to the prison mailbox rule.

         II. MOTION FOR RECONSIDERATION

         The Local Rules of the Eastern District of Michigan provide that any motion for reconsideration must be filed within 14 days after entry of the judgment or order. E.D. Mich. LR 7.1(h)(1). No response to the motion and no oral argument thereon are permitted unless the Court orders otherwise. Id. at 7.1(h)(2). Plaintiff's Motion is timely filed. See Doc # 44, Pg ID 545.

         Local Rule 7.1 further states:

(3) Grounds. Generally, and without restricting the court's discretion, the court will not grant motions for rehearing or reconsideration that merely present the same issues ruled upon by the court, either expressly or by reasonable implication. The movant must not only demonstrate a palpable defect by which the court and the parties and other persons entitled to be heard on the motion have been misled but also show that correcting the defect will result in a different disposition of the case.

Id. at 7.1(h)(3). “A ‘palpable defect' is a defect which is obvious, clear, unmistakable, manifest, or plain.” Fleck v. Titan Tire Corp., 177 F.Supp.2d 605, 624 (E.D. Mich. 2001).

         Plaintiff argues that the Court made a palpable error in its February 15, 2017 Order when it found that no timely objections to the Report and Recommendation had been filed. Plaintiff maintains that he did timely file objections pursuant to the prison mailbox rule.

         In order to preserve the right to appeal the magistrate judge's recommendation, a party must file objections to the report and recommendation within fourteen days of service of the report and recommendation. Fed.R.Civ.P. 72(b)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 155 (1985); Howard v. Sec'y of Health & Human Servs., 932 F.2d 505, 508-09 (6th Cir. 1991); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).

         The mailbox rule provides that documents submitted by prisoners are deemed filed when the prisoner delivers the documents to the proper prison authorities for forwarding to the district court. See Towns v. United States, 190 F.3d 468, 469 (6th Cir. 1999); Houston v. Lack, 487 U.S. 266, 270 (1988).

         The record shows that Plaintiff filed Objections to the Report and Recommendation. (Doc # 41) Although this document was not filed by the Clerk's Office until February 14, 2017, the proof of service indicates that Plaintiff delivered the Objections to prison mailroom personnel on February 8, 2017, before the February 9, 2017 deadline to file objections to the Report and Recommendation. See Id. at Pg ID 526. Accordingly, Plaintiff's Objections were timely filed, and the Court will grant Plaintiff's Motion for Reconsideration (Doc # 44). The Court next turns to analyzing Plaintiff's Objections.

         III. PLAINTIFF'S OBJECTIONS TO THE REPORT AND RECOMMENDATION

         Plaintiff has timely filed three Objections to the Report and Recommendation. (Doc # 41)

         The standard of review by the district court when examining a Report and Recommendation is set forth in 28 U.S.C. § 636. This Court “shall make a de novo determination of those portions of the report or the specified proposed findings or recommendations to which an objection is made.” 28 U.S.C. § 636(b)(1)(C). The court “may accept, reject, or ...


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