United States District Court, E.D. Michigan, Southern Division
RODNEY D. ROGERS Plaintiff,
MATTHEW RYAN, SGT. SABBI, SERINA KELLEY, JEFFREY MORIN, MICHAEL CONLEY, JAMES CRAIG, CITY OF DETROIT MAYOR DAVE BING, and JOHN DOES 1-2, Defendants.
OPINION AND ORDER REJECTING PLAINTIFF'S
OBJECTIONS TO MAGISTRATE JUDGE'S MAY 3, 2017 REPORT AND
RECOMMENDATION AND DISMISSING WITHOUT PREJUDICE
PLAINTIFF'S COMPLAINT AGAINST DEFENDANTS SABBI AND CONLEY
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 4(m)
V. PARKER U.S. DISTRICT JUDGE
19, 2016, Plaintiff filed this civil rights action against
Defendants. The matter presently is before the Court due to
Plaintiff's failure to provide the Court with a proper
address to serve Defendants Sergeant Sabbi and Michael Conley
and on Plaintiff's motion for alternate service on these
defendants. This matter has been referred for all pretrial
matters to Magistrate Judge David R. Grand.
3, 2017, Magistrate Judge Grand issued an order denying
Plaintiff's motion for alternate service and a report and
recommendation (“R&R”) recommending that this
Court dismiss without prejudice Plaintiff's Complaint
against Defendants Sabbi and Conley for failure to timely
effectuate service pursuant to Rule 4(m) of the Federal Rules
of Civil Procedure. (ECF No. 57.) At the conclusion of the
R&R, Magistrate Judge Grand informs the parties that they
must file any objections to the R&R within fourteen days.
Plaintiff filed objections on May 16, 2017.
may object to a magistrate judge's non-dispositive
orders, such as Magistrate Judge Grand's order denying
Plaintiff's motion for alternate service. Fed.R.Civ.P.
72(a); 28 U.S.C. § 636(b)(1)(A). The reviewing court
must affirm the magistrate judge's ruling unless the
objecting party demonstrates that the magistrate judge's
ruling is “clearly erroneous” or “contrary
to law.” Id. The “clearly
erroneous” standard does not empower a reviewing court
to reverse a magistrate judge's finding because it would
have decided the matter differently. See, e.g.,
Anderson v. Bessemer City, N.C. , 470 U.S. 564,
573-74 (1985). Instead, the “clearly erroneous”
standard is met when despite the existence of evidence to
support the finding, the court, upon reviewing the record in
its entirety, “is left with the definite and firm
conviction that a mistake has been committed.”
United States v. U.S. Gypsum Co., 33 U.S. 364, 395
(1948). An order is contrary to law “when it fails to
apply or misapplies relevant statutes, case law, or rules of
procedure.” Catskill Dev., L.L.C. v. Park Place
Entm't Corp., 206 F.R.D. 78, 86 (S.D.N.Y. 2002).
objections are filed to a magistrate judge's report and
recommendation on a dispositive matter, the Court
“make[s] a de novo determination of those
portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1). The Court, however, “is not required
to articulate all of the reasons it rejects a party's
objections.” Thomas v. Halter, 131 F.Supp.2d
942, 944 (E.D. Mich. 2001) (citations omitted). A party's
failure to file objections to certain conclusions of the
report and recommendation waives any further right to appeal
on those issues. See Smith v. Detroit Fed'n of
Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987).
Likewise, the failure to object to certain conclusions in the
magistrate judge's report releases the Court from its
duty to independently review those issues. See Thomas v.
Arn, 474 U.S. 140, 149 (1985).
Court has reviewed Plaintiff's objections to Magistrate
Judge Grand's decision denying his motion for alternate
service and is not convinced that the ruling is clearly
erroneous or contrary to law. As Magistrate Judge Grand
concluded, the Parole Violation Report, dated July 24, 2013,
does not suggest that Plaintiff's former parole agent,
Edward Parker, and/or Defendant Serina Kelley have
information with respect to the last known address(es) for
Defendants Sabbi or Conley, other than their address with the
Detroit Police Department (“DPD”) where they no
longer are employed. Further, Plaintiff fails to show where
publication could be made to reasonably assure that
Defendants Sabbi and Conley receive notification of this
lawsuit. Therefore, this Court is affirming
Magistrate Judge Grand's decision denying Plaintiff's
motion for alternate service.
respect to Magistrate Judge Grand's recommendation to
dismiss without prejudice Plaintiff's Complaint against
Defendants Sabbi and Conley, the Court has made a de
novo determination of those portions of the R&R to
which Plaintiff objects and reaches the same conclusion as
Magistrate Judge Grand. As to Plaintiff's first
objection, there is nothing to suggest that the source of
Defendant Morin's address will reveal Defendants
Sabbi's or Conley's addresses. Unlike Defendants
Sabbi and Conley, Defendant Morin remains a DPD employee and
thus DPD could provide a new address for him. As to
Plaintiff's second and third objections, he fails to show
that Parole Agent Parker or Defendant Kelley can provide a
last known address for Defendants Sabbi or Conley other than
what already has been provided or what manner of publication
will reasonably assure that they receive notice of this
Court, therefore, is rejecting Plaintiff's objections to
the R&R and adopting Magistrate Judge Grand's
IT IS ORDERED that Plaintiff's Complaint is DISMISSED
WITHOUT PREJUDICE against Defendants Sergeant Sabbi and
Michael Conley pursuant to Rule 4(m) of the Federal Rules of
Civil Procedure and these defendants are DISMISSED AS PARTIES
to this lawsuit.
 Michigan Court Rule 2.105(I) allows
for service of process pursuant to an alternate manner
provided it is “reasonably calculated to give the
defendant actual notice of the proceedings and ...