United States District Court, E.D. Michigan, Southern Division
AND ORDER (1) ADOPTING MAGISTRATE JUDGE'S JANUARY 18,
2018 REPORT AND RECOMMENDATION; (2) DENYING PLAINTIFF'S
MOTIONS FOR PRELIMINARY INJUNCTION, FACILITY TRANSFER, AND TO
STRIKE AFFIRMATIVE DEFENSES; (3) DENYING AS MOOT
PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT; AND (4)
REJECTING PLAINTIFF'S OBJECTIONS TO MAGISTRATE
JUDGE'S JANUARY 18, 2018 ORDER AND AFFIRMING
V. PARKER U.S. DISTRICT JUDGE
commenced this pro se civil rights lawsuit against Defendants
on August 4, 2017. Plaintiff subsequently filed numerous
motions, including: (1) thirteen procedural and discovery
motions (ECF Nos. 3, 4, 11, 13, 14, 16, 18, 20, 40, 45, 48,
55, 56); (2) a motion for summary judgment (ECF No. 6); (3) a
motion for preliminary injunction (ECF No. 17); (4) an
amended motion for summary judgment (ECF No. 21); (5) a
motion to strike affirmative defenses (ECF No. 46); and (6) a
motion for facility transfer (ECF No. 49.) The matter has
been assigned to Magistrate Judge Mona K. Majzoub for all
pretrial proceedings, including a hearing and determination
of all non-dispositive matters pursuant to 28 U.S.C. §
636(b)(1)(A) and/or a report and recommendation on all
dispositive matters pursuant to 28 U.S.C. §
January 18, 2018, Magistrate Judge Majzoub issued an order
regarding Plaintiff's procedural and discovery motions.
(ECF No. 59.) On the same date, Magistrate Judge Majzoub
issued a report and recommendation (“R&R”)
recommending that the Court deny Plaintiff's motions for
preliminary injunction, to strike affirmative defenses, and
for facility transfer. (ECF No. 60.). Because Plaintiff filed
an amended motion for summary judgment, Magistrate Judge
Majzoub also recommends that the Court deny as moot his
initial summary judgment motion. (Id.) At the
conclusion of her order and R&R, Magistrate Judge Majzoub
advises the parties that they may object to and seek review
of her decisions within fourteen days of service upon them.
(ECF No. 59 at Pg ID 204; ECF No. 60 at Pg ID 209.) With
respect to the R&R, Magistrate Judge Majzoub further
advises the parties that “[f]ailure to file specific
objections constitutes a waiver of any further right to
appeal.” (ECF No. 60 at Pg ID 209.) On February 13,
2018, Plaintiff filed objections, which he signed and dated
February 2, 2018. (ECF Nos. 64, 65.)
objections address Magistrate Judge Majzoub's
non-dispositive and dispositive rulings. When a party objects
to a magistrate judge's non- dispositive decision, the
reviewing court must affirm unless the objecting party
demonstrates that it is “clearly erroneous” or
“contrary to law.” Fed.R.Civ.P. 72(a); 28 U.S.C.
§ 636(b)(1)(A). 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.”
Id. (quoting United States v. U.S. Gypsum
Co., 333 U.S. 364, 395 (1948)).
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).
respect to Magistrate Judge Majzoub's ruling on his
procedural and discovery motions, Plaintiff objects first to
her failure to specifically order the Michigan Department of
Corrections to allow him to view the video on its monitor.
(ECF No. 64 at Pg ID 244.) Plaintiff did not seek such relief
in his motion, however. (See ECF No. 4.) In fact,
Magistrate Judge Majzoub went further than the relief
requested and ordered Defendants to produce the surveillance
footage to Plaintiff within fourteen days of her
order. (ECF No. 50 at Pg ID 200.) As such, the
Court finds no error in Magistrate Judge Majzoub's
next objects to Magistrate Judge Majzoub's ruling with
respect to his motion to adjourn the scheduling order. (ECF
No. 64 at Pg ID 245.) The reason Plaintiff now puts forth for
why the scheduling order should be expedited, however, was
not stated in his motion. (See id.) In fact, the
reason-a sexual attack committed against Plaintiff-occurred
after he filed his motion and after Magistrate Judge Majzoub
issued her ruling. As a result, the Court finds no error in
Magistrate Judge Majzoub's finding that Plaintiff failed
to establish good cause for a modification of the scheduling
order. See Fed. R. Civ. P. 16(b)(4).
agreed to provide Plaintiff with the discovery he sought in
his motion for discovery, and the scheduling order provides
until June 29, 2018 for the parties to conduct discovery.
Thus, Magistrate Judge Majzoub did not err in denying as moot
Plaintiff's motion for discovery. The magistrate judge
also correctly analyzed Plaintiff's motion for a physical
examination under Federal Rule of Civil Procedure 35.
Plaintiff fails to demonstrate that these rulings were
factually or legally erroneous.
Plaintiff objects to Magistrate Judge Majzoub's denial of
his motion to appoint counsel. (Id. at Pg ID
248-49.) As Magistrate Judge Majzoub stated,
“[a]ppointment of counsel in a civil case is not a
constitutional right” and counsel “is justified
only by exceptional circumstances.” (ECF No. 59 at Pg
ID 201, quoting Lavado v. Keohane, 992 F.2d 601,
605-06 (6th Cir. 1993).) Plaintiff has not shown that this is
an exceptional case warranting the appointment of counsel,
particularly where Plaintiff is a certified paralegal.
Plaintiff argues in his objections that he faces a delay in
accessing the law library. While this may later support a
requested extension of time, it does not demonstrate
exceptional circumstances warranting the appointment of
counsel. Magistrate Judge Majzoub did not foreclose the
appointment of counsel to represent Plaintiff at a later time
and thus his argument that he needs counsel to try his claims
before a jury does not establish error in her decision.
Courts in this jurisdiction routinely seek to appoint counsel
to represent pro se plaintiffs whose claims survive summary
judgment and will be proceeding to trial.
to Magistrate Judge Majzoub's R&R, Plaintiff first
objects to her recommendation that the Court deny his motion
to strike affirmative defenses. (ECF No. 65 at Pg
Id. 251-52.) Plaintiff, however, does not state a
basis under the applicable rule, Federal Rule of Civil
Procedure 12(f), for striking those defenses. Thus the Court
rejects Plaintiff's objection to this ruling.
also objects to Magistrate Judge Majzoub's recommendation
that the Court deny his motion for preliminary injunction.
(Id. at Pg ID 252-53.) In his motion, Plaintiff
sought an injunction barring the Macomb County Jail from
violating inmates' rights under the Eighth and Fourteenth
Amendments. (ECF No. 17.) Because Plaintiff no longer resides
at the Macomb County Jail, however, he cannot show that he
will suffer irreparable injury without the injunction.
Plaintiff is not bringing this lawsuit on behalf of a
putative class of inmates incarcerated at the jail, thus any
threat to other inmates is not before the Court.
these reasons, the Court rejects Plaintiff's objections
to Magistrate Judge Majzoub's January 18, 2018 order and
IT IS ORDERED that Magistrate Judge
Majzoub's January 18, 2018 Opinion and Order Regarding
Procedural and ...