United States District Court, W.D. Michigan, Southern Division
ORDER AFFIRMING MAGISTRATE JUDGE'S DECISION AND
APPROVING AND ADOPTING REPORT AND RECOMMENDATION
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE.
Appeal of Magistrate Judge's Decision
Judge Kent issued orders (ECF Nos. 25, 26) striking
Plaintiff's petitions and motions (ECF Nos. 18 and 22) as
improvidently filed and denying plaintiff's motions (ECF
Nos. 10 and 14) as improvidently filed. Plaintiff appeals the
Magistrate Judge's decisions. (ECF No. 32.) Plaintiff's
appeal lacks merit.
considering an appeal of a magistrate judge's ruling on a
nondispositive pretrial motion, the Court applies a
“clearly erroneous or contrary to law” standard
of review. United States v. Curtis, 237 F.3d 598,
603 (6th Cir. 2001) (citing United States v.
Raddatz, 447 U.S. 667, 673 (1980)); accord Brown v.
Wesley's Quaker Maid, Inc ., 771 F.2d 952, 954 (6th
Cir. 1985) (citing 28 U.S.C. § 636(b)(1)(a)); see
also Fed. R. Civ. P. 72(a) (District judge must consider
timely objections to nondispositive pretrial orders of
magistrate judge and modify or set aside any part of order
that is clearly erroneous or is contrary to law.) A finding
is “clearly erroneous” when “‘the
reviewing court on the entire evidence is left with the
definite and firm conviction that a mistake has been
committed.'” Anderson v. City of Bessemer City,
North Carolina, 470 U.S. 564, 573 (1985) (quoting
United States v. United States Gypsum Co., 333 U.S.
364, 395 (1948)).
Court finds no error in the Magistrate Judge's decisions.
To the contrary, the Court finds the Magistrate Judge's
Orders entirely proper. The Orders are factually sound and
legally correct. Plaintiff's appeal lacks merit.
Petitioner's appeal (ECF No. 32) is
to Report and Recommendation
Court has reviewed Magistrate Judge Kent's Report and
Recommendation in this matter (ECF No. 27) and
Plaintiff's Objections to the Report and Recommendation
(ECF No. 31). Under the Federal Rules of Civil Procedure,
where, as here, a party has objected to portions of a Report
and Recommendation, “[t]he district judge . . . has a
duty to reject the magistrate judge's recommendation
unless, on de novo reconsideration, he or she finds it
justified.” 12 Wright, Miller, & Marcus, Federal
Practice and Procedure § 3070.2, at 381 (2d ed. 1997).
Specifically, the Rules provide that:
[t]he district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
Fed R. Civ. P. 72(b)(3). De novo review in these
circumstances requires at least a review of the evidence
before the Magistrate Judge. Hill v. Duriron Co.,
656 F.2d 1208, 1215 (6th Cir. 1981). The Court has reviewed
de novo the claims and evidence presented to the Magistrate
Judge; the Report and Recommendation itself; and
Plaintiff's objections. After its review, the Court finds
that Magistrate Judge Kent's Report and Recommendation is
factually sound and legally correct.
Magistrate Judge recommends that the Court dismiss the action
as frivolous under Fed.R.Civ.P. 12(b)(1). Plaintiff's
Objections fail to come to grips with the Report and
Recommendation in any meaningful way. Nothing in
Plaintiff's Objections changes the fundamental analysis.
The Court agrees with the Magistrate Judge's conclusion
that the only federal claim must be dismissed as frivolous
under Rule 12(b)(1) and because it fails on the merits in any
event. To the extent non-federal claims remain, they belong
in state court. See 28 U.S.C. § 1367(c)(3).
IT IS ORDERED that the Report and Recommendation of
the Magistrate Judge (ECF No. 27) is approved and adopted as
the opinion of the Court to the extent consistent with this
IS FURTHER ORDERED:
Plaintiff's Motion to Amend or Correct (ECF No. 20) is
Plaintiff's federal claim is DISMISSED
as frivolous ...